Rajindar Sachar, J.
1. This is an appeal against the order of the Workmen's Compensation Commissioner rejecting the claim filed by the appellant.
2. Mst. Fatma Begum filed an application on 14-4-70 under Section 20 of the Workmen's Compensation Act (hereinafter to be called 'the Act') claiming Rs. 6000/- as compensation against the respondent. The allegation was that her husband Ijazuddin was in the employment of respondent where the latter was working on a mine worked by the respondent and he died as a result of accident during the course of employment on 5-4-70.
3. The lower court has found that the deceased Ijazuddin was in the employment on the contractor Bhure Khan. It also found that on the date of the accident on 5-4-70 the mine work was being carried on by the respondent. It found that the deceased was getting Rs. 100/- per mensem as wages. However under issue No. 5 he held that the appellant had not been proved to have been legally married to the deceased Ijazuddin and was therefore not entitled to maintain the application He therefore by his judgment dated 4.7.74 dismissed the application. The appellant bas come to this Court in appeal.
4. An effort was made by the counsel for the respondent Mr. Bhargava to challenge the finding of issue No. 2 that the deceased was in the employment of the respondent Bhure Khan and that the respondent was carrying on the mine on 5.4.70. Undoubtedly the respondent was a lessee of the mine upto 31.5.69. The learned court has referred to the inquiry made by the Mines Engineer, Bhilwara who submitted a report dated 16.4.71 to the court that on the date of the accident respondent was carrying on the mine though in an unauthorised manner. Similarly is the letter from the Joint Director of Mires Safety dated 26.5.70 about the occurrence of the accident and the Joint Director by his letter of 26.4.71 informed the Court that Bhure Khan was the owner of the mine on 5.4.70, the date of the accident. It is not disputed by the respondent that he had lease of the mine upto 31.5.69. He has not led any evidence to show that he had handed over the possession to the Department He had however stated in his evidence that the work was earned on by one Shri Hamid Khan but curiously he had produced neither the said Hamid Khan nor has given any evidence to substantiate. I would in the circumstances affirm the finding of the court below and hold that on the date of accident Bhure Khan was carrying on the mine PW 2 Ijazuddin had stated that on coming to know of the accident to the deceased be went to the mine; though be was cross-examined no suggestion was given to him that the deceased never worked in the mine. The respondent has also not produced his after dance register or employees register to show that the deceased was not one of his employees. It has therefore to be held the deceased wag in the employment of the respondent when the accident took place on 5.4.70.
5. Under issue No. 5 the learned court has held that the applicant was net the widow of Ijazuddin. He has referred to the statement to the effect that there had been no 'Nikah' with Ijazuddin and has therefore opined that the marriage could not have been recognised in law. In my view the learned court has ignored the vital evidence and has misread the same. The appellant appeared as PW 1 and clearly stated that her husband had only married once and that marriage was with her She has also stated that at the time of his death he was survived by herself and their two daughters. It is relevant to note that in the written statement no specific plea was taken that she was the widow of deceased and I am surprised that in the absence of such a plea the court should have held in such a summary manner that there was no marriage between the deceased and the appellant. Though no doubt she has stated that there was no 'Nikah' but that was in answer to a court question and appears to have been seated persumably about a suggestion of re-marriage after the death of the deceased. It is worthy of note that the question whether there was a marriage was not at once suggested in cross-examination by the respondent but were questions and put by the court (I fail to tee as to on what pleading the court thought that such questions were relevant). It appears to me that the lower court seemed to think as if there was onus to prove valid marriage on the appellant. That is against the settled position in law. The evidence showed that the appellant bad been living with the deceased as a married wife for a number of years and had children by him. There was thus a presumption of a valid marriage between the two* The lower court's manifest erroneous approach is obvious from the fact when referring to the witness Din Mohammed who had stated that the deceased was married to the daughter of jamadarji of Bawan Vas, Gangapur City and jumps to the conclusion that as it has not been stated that Fatma (appellant) was the daughter there was no presumption of approach The whole approach of the lower court is unsupportable. There is a presumption of marriage end validity of marriage cannot be set aside in this show and summary manner in the lower court has done. I would therefore reverse this finding of the lower court and hold that the appellant was the legally married wife of the deceased. In that view she would obviously have interest and would be entitled to maintain the application. It is not disputed by the counsel for the respondent that if the appellant is entitled to compensation, as she is in view of my finding, the amount of compensation comes to Rs. 6000/-.
6. As a result I would accept the appeal and reverse the judgment of the lower court and award the appellant the compensation of Rs. 6000/-, The appellant will have her costs throughout.