Continuous cohabitation post-divorce can raise a presumption of marriage, allowing a divorced spouse to claim dependent benefits under the Employees' State Insurance Act.

ORDER

The brief facts that are relevant for disposal of this writ petition are as under:

One Mr.Narayanaswamy worked as Ironer in M/s.Carloo Textile, having its factory at Chennimalaipalayam, Karaipudur Village, Ganapathipalayam Road, Tiruppur with employee I.D No.842 and he was enrolled with the Employee State Insurance Corporation and necessary contributions have been paid to by his employer and the petitioner. He was married to the petitioner herein, on 23.06.1985 and out of wedlock, they have two children namely, Sathya and Manikandan. It was thereafter, the petitioner and the said Narayanaswamy obtained divorce by mutual consent in H.M.O.P.No.61 of 2004, by an order dated 07.02.2006 passed by the Court of Sub-ordinate Judge, Kovilpatti. It is thereafter, the said Narayanaswamy died in an accident occurred during the course of his employment on 02.12.2016. While, the said Narayanaswamy was alive, he submitted a nominee form prescribed under Rule 93 of Tamil Nadu Factories Rules, 1950 nominating the petitioner herein, as his nominee in the capacity of wife for payment of dues for the period of leave with wages and pending payments/salaries to her and she was described as wife in the said nomination form. After the demise of the said Narayanaswamy, the son of the petitioner herein, made a claim for payment of dependent benefits, but the said request was rejected by the respondent Corporation on the ground that the son of the petitioner namely Manikandan had attained the age of 25 years and thereby, cease to be a dependent of the deceased employee within the meaning of Section 2(6-A) of the Employees' State Insurance (in short 'ESI') Act, 1948.

2. It was thereafter, the petitioner herein, submitted an application on 30.08.2018 claiming for payment of the dependent benefits to her claiming to be the wife of the deceased employee. In the said application, the petitioner claimed that though there was a decree of divorce, the petitioner again started living with the deceased employee from the year 2007 onwards on the advice of elders and well wishers and she lived with the deceased employee till the date of his demise. She also placed reliance on the nomination form that was submitted by the deceased employee under the Factories Act, 1948, during his life time. The said claim of the petitioner was considered by the Corporation and through the impugned proceedings dated 07.09.2018, the same was rejected on the ground that unless the petitioner produce the remarriage certificate or favorable court ruling, dependent benefit cannot be sanctioned to the petitioner. It is aggrieved by the said order dated 07.09.2018, the petitioner approached this Court by filing the present writ petition.

3. In response to the notice issued by the Court, the respondent filed detailed counter affidavit contending that the divorced wife cannot be treated as dependent within the meaning of Section 2 (6-A) of ESI Act, 1948 once the divorce was granted by the competent Court on 07.02.2006. It is further stated that the presumption of marriage is not available to the petitioner on the ground of continuous co-habitation for number of years, as the marriage between the petitioner and the deceased employee was dissolved by the decree of divorce and so long decree is in operation, the petitioner cannot claim the status of wife of the deceased employee. The respondents also disputed the legal heir certificate issued by Tahsildhar and the certificate issued by the concerned Village Administrative Officer, Alampatti certifying that the petitioner and the deceased employee lived together as wife and husband during the life time of the deceased employee. The respondents also raised a ground contending that the present writ petition is filed belatedly, after one and half years, after passing of the impugned order.

4. Heard Mr.K.R.Samratt for Mr.H.Rajasekar, learned counsel appearing for the petitioner and Ms.G.Narmadha for Mr.G.Bharadwaj, learned counsel appearing for t