Questions and answers on law(Part 56)

Q 1:-  Which two principles of private international law are mentioned in CPC?

Ans: S 13 and S 14 of CPC relating to foreign judgment and its presumption.

Q 2:- Whether CPC is applicable to revenue court?

Ans :-S 5 of CPC is applicable to revenue court on the point of procedure where special statute is silent if the State Government, by notification in the Official Gazette, declare.

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Notes on Rights of the child born out of void and voidable marriage as per S 16 of Hindu Marriage Act

 S 16 of Hindu Marriage Act:- Legitimacy of children of void and voidable marriage-

1) Children of void and voidable marriage as per S 11 or S 12 of Hindu marriage Act are deemed to be legitimate.

2) there must be marriage between man and woman.S 16 can not invoked if there was no marriage.

3) such a child is not entitled to inherit property of any person other than his parents.

Leading caselaw:-

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Whether S 16 of Hindu marriage Act grants illegitimate child right in ancestral coparcenary property?

 So far as Section 16 of the Act is concerned, though it was enacted to legitimate children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provide in Sub-section (3) by engrafting a provision with a non obstante clause stipulating specifically that nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage, which is null and void or which is annulled by a decree of nullity under Section 12, "any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of this not being the legitimate child of his parents," In the light of such an express mandate of the legislature itself there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further righter than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in Sub-section (3) of Section 16 of the Act but also would attempt to court deregulating on the subject under the guise of interpretation, against even the will expressed in the enactment itself. Consequently, we are unable to countenance the submissions on behalf of the appellants. The view taken by the courts below cannot be considered to suffer from any serious infirmity to call for our interference, in this appeal.

IN THE SUPREME COURT OF INDIA

Appeal (civil) 7247 of 1995

Decided On: 20.12.2002

 Jinia Keotin Vs.  Kumar Sitaram Manjhi and Ors.

Hon'ble Judges/Coram:

Doraiswamy Raju and Shivaraj V. Patil, JJ.

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Whether children born out of void marriage can claim share in property of their parents during their life time?

 Thus, it is now made more than clear that, the children of a void marriage, though regarded as legitimate, such children would not be entitled to any share in the properties, which are ancestral coparcenary joint family properties of their parents. Their right to claim the share remains limited only to the extent of the separate property of their father, but in that property, they cannot make any claim during the lifetime of their father. Their right in the separate properties of their father will accrue only on the death of their father and, that too, by way of succession.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 737 of 2013, Civil Application No. 1729 of 2013 and Second Appeal No. 738 of 2013

Decided On: 30.07.2018

 Balkrishna Pandurang Halde Vs. Yeshodabai Balkrishna Halde

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(6) MHLJ 947

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Whether children born out of physical relationship between man and woman will get benefit of deeming legitimacy?

I rely on the decision in Revanasiddappa & anr. v. Mallikarjun & Ors. (supra), where it is held that "however one thing must be made clear that benefit given under the amended section 16 is available only in cases where there is a marriage may such marriage is void or voidable in view of the provisions of the act". In converse, if there is no marriage may be void or voidable, then, this benefit of 'deeming legitimacy' is not available for the children, who are begotten out of any physical relationship of a man and a woman. Thus, the meaning of marriage and the benefit of legitimacy as contemplated under section 16 is not wide but is restricted to and controlled by the word 'marriage'. Any physical relationship between a man and a woman is not contemplated as a marriage under section 16 of Hindu Marriage Act. 

IN THE HIGH COURT OF BOMBAY

Review Petition No. 19 of 2016 in First Appeal No. 577 of 2015

Decided On: 07.06.2017

Indubai Jaydeo Pawar and Ors. Vs. Draupada and Ors.

Hon'ble Judges/Coram:

Mridula Bhatkar, J.

Citation: 2017(6) MHLJ 816

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Whether minor children from second marriage are entitled to get family pension?

Now, when first order was cancelled by the State Government and second passed depriving Yogmaya Devi and her children of any right in the pensionary benefits of Narain Lal, she filed writ petition in the High Court, which as noted above, was allowed by the learned single Judge and later appeal filed by Rameshwari Devi against that was dismissed by the Division Bench of the High Court which is impugned. Learned single Judge referred to Section 16 of the Hindu Marriage Article 1955 holding that even though the marriage of Narain Lal with Yogmaya Devi was void (heir children would be legitimate and thus would be entitled to claim share in the family pension and death-cum-retirement gratuity of Narain Lal but only till they attained majority. Learned single Judge accordingly issued direction to the State Government, to issue fresh sanction order for payment of arrears of family pension and death cum-retirement gratuity to the minor children born from the wedlock between Yogmaya Devi and Narain Lal till they attain majority but nothing would be payable to Yogmaya Devi.

It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of Clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in Clause (1) which include widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described a widow of Narain Lal, her marriage with Narain Lal being void. Sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, legal position when Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement gratuity payments which is governed by the relevant rules, It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment.

IN THE SUPREME COURT OF INDIA

C.A. No. 605 of 2000 (Arising out of S.L.P. (C) No. 17636 of 1998)

Decided On: 27.01.2000

 Rameshwari Devi Vs. State of Bihar and others


Hon'ble Judges/Coram:

D.P. Wadhwa and S.N. Phukan, JJ.

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Whether children of void marriage are entitled to get family pension till they attain majority?

 Now, when first order was cancelled by the State Government and second passed depriving Yogmaya Devi and her children of any right in the pensionary benefits of Narain Lal, she filed writ petition in the High Court, which as noted above, was allowed by the learned single Judge and later appeal filed by Rameshwari Devi against that was dismissed by the Division Bench of the High Court which is impugned. Learned single Judge referred to Section 16 of the Hindu Marriage Article 1955 holding that even though the marriage of Narain Lal with Yogmaya Devi was void (heir children would be legitimate and thus would be entitled to claim share in the family pension and death-cum-retirement gratuity of Narain Lal but only till they attained majority. Learned single Judge accordingly issued direction to the State Government, to issue fresh sanction order for payment of arrears of family pension and death cum-retirement gratuity to the minor children born from the wedlock between Yogmaya Devi and Narain Lal till they attain majority but nothing would be payable to Yogmaya Devi.

It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in clause (1) which include widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described a widow of Narain Lal, her marriage with Narain Lal being void. Sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, legal position when Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement Gratuity payments which is governed by the relevant rules. It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment. Rameshwari Devi has raised two principal objections : (1) marriage between Yogmaya Devi and Narain Lal has not been proved, meaning thereby that there is no witness to the actual performance of the marriage in accordance with the religious ceremonies required for a valid Hindu marriage and (2) without a civil court having pronounced upon the marriage between Yogmaya Devi and Narain Lal in accordance with Hindu rights, it cannot be held that the children of Yogmaya Devi with her marriage with Narain Lal would be legitimate under Section 16 of the Hindu Marriage Act. First objection we have discussed above and there is nothing said by Rameshwari Devi to rebut the presumption in favour of marriage duly performed between Yogmaya Devi and Narain Lal. On the second objection, it is correct that no civil court has pronounced if there was a marriage between Yogmaya Devi and Narain Lal in accordance with Hindu rights. That would, however, not debar the State Government from making an inquiry about the existence of such a marriage and act on that in order to grant pensionary and other benefits to the children of Yogmaya Devi. On this aspect we have already adverted to above. After the death of Narain Lal, inquiry was made by the State Government as to which of the wives of Narain Lal was his legal wife. This was on the basis of claims filed by Rameshwari Devi. Inquiry was quite detailed one and there are in fact two witnesses examined during the course of inquiry being (1) Sant Prasad Sharma, teacher, DAV High School, Danapur and (2) Sri Basukinath Sharma, Shahpur Maner who testified to the marriage between Yogmaya Devi and Narain Lal having witnessed the same. That both Narain Lal and Yogmaya Devi were living as husband and wife and four sons were born to Yogmaya Devi from this wedlock has also been testified during the course of inquiry by Chandra Shekhar Singh, Rtd. District Judge, Bhagalpur, Smt. (Dr.) Arun Prasad, Sheohar, Smt. S.N. Sinha, w/o Sri S.N. Sinha, ADM and others. Other documentary evidence were also collected which showed Yogmaya Devi and Narain Lal were living as husband and wife. Further, the sons of the marriage between Yogmaya Devi and Narain Lal were shown in records as sons of Narain Lal.

Having considered all the facts of the case as presented before us we do not find any error in the impugned judgment of the Division Bench of the Patna High Court upholding the judgment of the learned single Judge referred to in the beginning of this judgment. 

Supreme Court of India

Rameshwari Devi vs State Of Bihar And Others on 27 January, 2000

Bench: D.P.Wadhawal, S.N.Phukan

Citation;AIR2000SC735, 2000(4)ALLMR(SC)237,I(2000)DMC164SC,(2000)2SCC431, (2000)SCC(LS)276,

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Whether child born prior to marriage can be treated as legitimate?

The legal fiction created by the legislature is that children, though illegitimate, shall nevertheless, be treated as legitimate, notwithstanding that the marriage was void or voidable. The legal fiction specifically intended by the legislature to bring about legitimacy on the children is intended to bring about a social reform. Extension of the benefit of the legislation to children born out of any relationship, during the subsistence of the first marriage, without there being any marriage, between the parties, at the time of the birth of child, would in my view, be against the sanctity attached to marriage, which according to Hindu Law is a holy union, which is not a contract. The intention of the parties to marry subsequently and give recognition to their son, born before their marriage is different from applying the legal fiction, created by the enactment. The law enacted with the object of eliminating the discrimination between two grounds of illegitimate children, has not dealt with the children born out of illicit relationship.

47. Though live-in relationship as husband and wife is now considered and recognised by Courts, where presumption of marriage can also be raised, on account of leading a life of husband and wife, for a long number of years, there is no legislation, legitimizing the birth of child born before marriage, by subsequent marriage and it is for the legislature to consider standards of living and whether it would being about social reforms, affecting the sanctity attached to the marriage.

IN THE HIGH COURT OF MADRAS

S.A. No. 315 of 2006

Decided On: 07.12.2011

Appellants: General Manager, Southern Railway
Vs.
Respondent: R. Thangaraja

Hon'ble Judges/Coram:
S. Manikumar, J.

 Citation: 2012-1-LW189, (2012)2MLJ720

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