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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What is distinction between “Void Marriages” and “Voidable Marriages” as per Hindu Marriage Act?

 Under the Hindu Marriage Act 1955, "Void Marriages" and "Voidable Marriages" are two distinct legal concepts:

1. Void Marriages: A void marriage is considered invalid from the beginning, as if it never took place. It is void ab initio, meaning it is treated as though it never existed. A marriage is void if it contravenes Clauses(1) (4) and (5) of S 5 of Hindu Marriage Act.  The grounds for a marriage to be declared void are specified in Section 11 of the Hindu Marriage Act. Some common grounds for void marriages include:

• Bigamy: When either party is already married to another person at the time of marriage.{Clause 1}

• Prohibited relationship: When the parties are within the degrees of prohibited relationship, such as close blood relatives.{clause 4}

• Sapindas: If The parties are sapindas of each other.{Clause 5}.

2. Voidable Marriages: A voidable marriage, on the other hand, is initially considered valid, but can be annulled by either party based on certain grounds specified in Section 12 of the Hindu Marriage Act. The grounds for a marriage to be declared voidable include:

sub-Section(1)

• (a )Non-consummation: When the marriage has not been consummated due to the impotence of either party.

• (b )Mental disorder: When either party suffers from a mental disorder that makes them unfit for marriage.

• (c ) Consent obtained by fraud or force: When consent for the marriage was obtained through coercion, fraud, or undue influence.

• (d) Respondent pregnant at the time of marriage by some person other than the petitioner.

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Whether Conviction U/S 498A IPC is Sustainable if Marriage Is Found To Be Null & Void?

Mr. S.Nagamuthu, learned senior counsel for the appellants submits that the marriage between the parties has been held to be null and void by the judgment of the High Court of Madras, Madurai Bench by order dated 25.02.2021. He therefore submits that in view of the judgment of this Court in the case of Shivcharan Lal Verma v. State of Madhya Pradesh reported in (2007) 15 SCC 369, the conviction under Section 498-A IPC would not be sustainable. {Para 5}

7. Undisputedly, the marriage between the appellant No.1 and PW-1 has been found to be null and void. As such the conviction under Section 498-A IPC would not be sustainable in view of the judgment of this Court in the case Shivcharan Lal Verma's case supra.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1404-1405 of 2012 and Criminal Appeal Nos. 1408-1409 of 2012

Date of Order: 09.02.2023

P. Sivakumar and Ors. Vs. State rep. by the Deputy Superintendent of Police and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and Vikram Nath, JJ.

Citation:  MANU/SCOR/28852/2023.

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Whether Children Born Out Of Void Marriage Are Legitimate and are entitled to get service on Compassionate ground?

 Even if the narrow classification test is adopted, the circular of the

Railway Board creates two categories between one class of legitimate

children. Though the law has regarded a child born from a second marriage

as legitimate, a child born from the first marriage of a deceased employee is

alone made entitled to the benefit of compassionate appointment. The

salutary purpose underlying the grant of compassionate appointment, which

is to prevent destitution and penury in the family of a deceased employee

requires that any stipulation or condition which is imposed must have or bear

a reasonable nexus to the object which is sought to be achieved. The

learned Additional Solicitor General has urged that it is open to the State, as

part of its policy of discouraging bigamy to restrict the benefit of

compassionate appointment, only to the spouse and children of the first

marriage and to deny it to the spouse of a subsequent marriage and the

children. We are here concerned with the exclusion of children born from a

second marriage. By excluding a class of beneficiaries who have been

deemed legitimate by the operation of law, the condition imposed is

disproportionate to the object sought to be achieved. Having regard to the

purpose and object of a scheme of compassionate appointment, once the

law has treated such children as legitimate, it would be impermissible to

exclude them from being considered for compassionate appointment.

Children do not choose their parents. To deny compassionate appointment

though the law treats a child of a void marriage as legitimate is deeply

offensive to their dignity and is offensive to the constitutional guarantee

against discrimination.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.12015 OF 2018

UNION OF INDIA  Vs  V.R. TRIPATHI 

Author: Dr Dhananjaya Y Chandrachud

Dated: December 11, 2018

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Whether children born out of void marriage are class 1 Legal heirs as S 8 of the Hindu Succession Act?

This Court in the matter of Laxmibai

and others vrs. Limbabai, reported in 1983 Mh.L.J.103, has

recorded a finding that the children born out of the marriage

which is void cannot be termed illegitimate one and they are

covered by the expression ‘son and daughter - class-I' for

Scheduled 8 of the Hindu Succession Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATER JURISDICTION

SECOND APPEAL NO. 269 OF 1992

 Shri Vishnu Laxman Padule Vs  Laxman Rama Padule,

CORAM: N.W.SAMBRE, J .

DATE : 9 JANUARY, 2020.

Citation: 2021(2) MHLJ 288

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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 it is mandatory to prove custom by clear and unambiguous evidence?

In another case in Udaya Swain. v. Satya Swainani reported in MANU/OR/0197/1970 : 1970 The Cuttack Law Times, 1330, the learned single Judge of the Orissa High Court found as under:

"The question to be examined, therefore, is as to whether the defendant has been able to establish the custom alleged by him. This custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly. It is essential that it should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that Courts can be assured of its existence, and of the fact that it possesses the conditions requisite of recognition.

8. As was indicated in a very old decision of the Madras High Court in Gopalayyan v. Raghunatiayyan and continuity of the usage and the conviction of those following it that they were acting in accordance with law, and this conviction must be inferred from the evidence. It was further stated that the evidence of acts of the kind, acquiescence in those acts, their publicity, decisions of courts, or even of panchayats upholding such acts, the statements of experienced and competent persons on their belief that such acts were legal and valid will all be admissible but it is obvious that, although admissible evidence of this latter kind will be of little weight unsupported by actual evidence of usage asserted. The rule laid down by the Board in the case of Ramalakshmi Ammal v. Sivanatha Perumal Sathuravar, has been quoted with approval on several occasions by their Lordships of the Judicial committee and runs to the following effect:

"It is of the essence of special usages, modifying the ordinary law of succession that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the condition of antiquity and certainty on which alone their legal title to recognition depends."

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Family Court Appeal No. 90/2015

Decided On: 09.03.2017

 Shalini Vs. Dhanraj

Hon'ble Judges/Coram:

V.A. Naik and V.M. Deshpande, JJ.

Citation: 2017(5) MHLJ 199

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Whether daughters born out of void marriage are entitled to inherit property of their father?

It is an admitted position that respondents 2 and 3 were born out of the wedlock of late Suryanarayana and Pydamma during the subsistence of the marriage between Suryanarayana and Chilakamma. Even assuming, the marriage between late Suryanarayana and Pydamma cannot be treated as a valid marriage because of the subsistence of the marriage between late Suryanarayana and Chilakamma, considering the fact that respondents 2 and 3 were born out of the marriage between Suryanarayana and Pydamma, they would be entitled to succeed to the properties on the death of Suryanarayana and Chilakamma. In this connection, we may consider certain provisions of the Hindu Marriage Act, 1955 (in short 'the Act').

Section 5 of the Act clearly states the grounds when the marriage cannot be solemnized. Clause (i) of Section 5 is one such condition, which clearly provides that no marriage can be performed if there is a living spouse. Therefore, in view of Section 5, the marriage between Suryanarayana and Pydamma cannot be considered to be legal as at the time of such marriage, Chilakamma was very much alive. Section 11 of the Act, which deals with a void marriage says that any marriage solemnized after the commencement of this Act shall be null and void if it contravenes any of the conditions specified in Clause (i), (iv) and (v) of Section 5 of the Act. Therefore, in view of Sections 5 and 11 of the Act, it must be held that the marriage between Suryanarayana and Pydamma is a void marriage as the said marriage was admittedly solemnized after the commencement of the Act. Therefore, considering that the marriage between Suryanarayana and Pydamma was a void marriage, the question that would now arise is whether their daughters, namely, respondents 2 and 3 were entitled to inherit the properties in question, with the first wife, Chilakamma, on the death of Suryanarayana. In this connection, we may refer to Section 16 of the Act. Section 16 of the Act deals with legitimacy of children of void and voidable marriages. Sub-section (1) of Section 16 of the Act clearly says that notwithstanding that the marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate. (Emphasis supplied) Therefore, in view of Section 16, it is clear that the daughters, namely, respondents 2 and 3 inherited the properties in question, along with Chilakamma, on Suryanarayana's death. Accordingly, the High Court was justified in holding that on the death of Suryanarayana, the properties in question were inherited by his daughters, namely, respondents 2 and 3, along with Chilakamma and therefore were entitled to evict the appellants from the properties in question along with Pydamma. Accordingly, the findings of the High Court on the question whether respondents 2 and 3 were entitled to inherit the properties in question of late Suryanarayana jointly with Chilakkama cannot be interfered with. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 149 of 2004

Decided On: 12.05.2006

Bhogadi Kannababu  Vs. Vuggina Pydamma and Ors.

Hon'ble Judges/Coram:

Dr. Arijit Pasayat and Tarun Chatterjee, JJ.

Citation:(2006) 5 SCC 532

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Whether family pension can be bequeathed by will?

Thus, the payment of pension is strictly governed by the service
rules   and,   therefore,   it   cannot   be   an   'estate'   disposable   by   will.
Though the Government employee has right to receive the pension, itcannot be treated as a 'property'.  On this point, I rely on the case of
Jodh Singh (supra).   In the said case, the officer bequeathed his
movable and immovable property to his father during his life time
and nominated his parents for the Provident Fund, as his relation
with his wife was not cordial.   The Hon'ble Supreme Court while
dealing with the issue held that the pension is a retirement benefit
and is not payable in the life time of the employee and what is not
payable during the life time of the deceased over which he has no
power of disposition and cannot form part of his estate.   It is the
event   of   his   death   that   provides   the   eligibility   qualification   for
claiming special family pension.
24. In the case of Sundariya Bai Choudhary (supra), the Division
Bench of Madhya Pradesh High Court has taken a similar view that
the pension of deceased cannot be said to be an estate and it is not
transferable   and   cannot   be   bequeathed   by   Will.     However,   other
pensionary   benefits   like   Provident   Fund,   Gratuity   etc.   and   other

retiral dues or extra renumeration would be estate of the deceased
and that can be bequeathed by him.
25. In the case of Violet (supra), the Hon'ble Supreme Court had an
opportunity to deal with Railway Family Pension Rules and held that
pension cannot be bequeathed by will since it is not a part of estate of
the employee but it is for monetary benefit of wife and children.
26. After going through the facts of the cases and law laid down
therein which are referred above, it is pertinent to note that in these
cases, husbands have disposed of the property by will to other family
members by denying the claim of the wife and, therefore, the Courts
have taken a view that wife has prime claim over the pension of the
husband and that cannot be denied.  In the present case, Jaydeo has
bequeathed his pension to his first wife only.  It is a settled position of
law that pension is not a estate and so it cannot be bequeathed by
will, so to that extent, i.e., the portion of bequeath of pension in
favour of Draupada is bad in law, however, the statements made in
the   will   about   the   status   of   Draupada   and   his   final   wish   that
Draupada alone has right over his pension corroborates a fact of valid

nomination of Draupada as a first wife.
27. Thus, it is held that pension is not a estate or property and
cannot be disposed of and to that extent, the portion in the will

regarding bequeath is against the law.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.577 OF 2015
WITH
CIVIL APPLICATION NO.1770 OF 2015
Draupada @ Draupadi Jaydeo Pawar
and Others 
vs.
Indubai d/o. Kashinath Shivram Chavan
and Another 

CORAM : MRS.MRIDULA BHATKAR, J.

 Dated  : 10th FEBRUARY, 2016
Citation: 2017(1) ALLMR197

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Whether second wife can claim family pension after death of husband?

The reasoning given by the Division Bench is consistent with the
other   provisions   of   law   as   mentioned   above   wherein   the   second
marriage   is   held   void.     The   Indian   legal   system   has   adopted
monogamy   as   a   legal   structure   of     the   marriage   institution   and,
therefore, occasional fractures of second marriage in subsistence of
first marriage are held void in law.   The second woman cannot be
given a status of  a legally wedded wife and, as rightly observed by
the Division bench, she is not a widow in true and legal sense.   A
wrong may exist in the Society on a large scale, however it cannot be
justified as a righteous custom because of its magnitude.  In order to

buttress this point, it will not be out of place to give example of give
and take of dowry which throws light on the wide gap between the
legality and the reality.  To take lenient view towards the wrong doers
is contrary to law laid down by the legislature.  Thus, gap should not
be widened by the decision of the Court but it is to be bridged. It is
mandatory for the Court to interpret a law which gives true effect to
the legislative intent.   The Division Bench in the case of  Chanda
Hinglas   Bharati  has   referred   to   the   relevant   provisions   under
different acts regarding the consequences of second marriage and the
status of second woman.  
38. It was argued by the learned counsel for the respondent that a
second wife was deceived by deceased husband and she begotten a
daughter from the deceased and therefore, it is necessary for the
Court to take a gender protectionist view and grant her pension. This
argument of the learned counsel for the respondent is one sided and
may appear convincing superficially, but it does not stand to reason
after close scrutiny.   The Courts have empathy for a woman who is
deceived by a man, however, she may take recourse under the other
enactments for redressal.  So far as husband is a Government servant

and matter is covered under the rules, then the Court cannot take
other view than permissible in law. The Division Bench in the case of
Chanda Hinglas Bharati has made a reference to similar argument
and has rightly observed that “showing sympathy to a woman like the
petitioner would result in depriving a legitimate wife of her right to
receive full family pension.  This is the gender positive view towards
the legally wedded wife.  The case of second wife may be unfortunate
but I am of the view that Court cannot pass verdict in her favour.
While doing justice, injustice should not be caused to a person having
a rightful claim. 
39. Thus, I fully rely on the ratio laid down in the case of Chanda
Hinglas Bharati and hold that marriage contracted with second lady
in subsistence of first marriage or spouse is living, then second lady
from   the   Hindu/Christians   cannot   claim   as   a   widow   entitled   to
pension   subject   to   personal   law   or   as   stated   in   Rule   26   of
Maharashtra Civil Services (Conduct) Rules.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.577 OF 2015
WITH
CIVIL APPLICATION NO.1770 OF 2015

Draupada @ Draupadi Jaydeo Pawar  vs.  Indubai d/o. Kashinath Shivram Chavan

CORAM : MRS.MRIDULA BHATKAR, J.

 Dated  : 10th FEBRUARY, 2016
Citation: 2017(1) ALLMR197

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Whether woman whose marriage is declared as void can claim maintenance under Domestic violence Act?

In the instant case, petitioner alleged physical and mental
torture upon her by opposite party no. 1 during continuation of
their marital relationship. She also alleged that opposite party no.
1 kept her ‘Stridhana’ property with him and she was not provided
maintenance for herself and her child by the opposite party
although the petitioner is unable to maintain herself and her child.
Since her marital relation with opposite party no. 1 has been
declared a nullity with effect from 23.04.2012, her right to claim
maintenance from opposite party no. 1 may not be proper under
Section 125 of the Cr.P.C. But she cannot be debarred from
seeking reliefs against the opposite party no. 1 ventilating her
grievances against opposite party no. 1 who is engaged in legal
profession as an advocate. In my opinion, the P.W.D.V. Act is the
proper enactment for her redress. In this regard the latin maxim,
“Ubi jus ibi remedium” (wherever there is a right there is a
remedy) may be mentioned.
 IN THE HIGH COURT AT CALCUTTA
 CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present :
THE HON’BLE JUSTICE SANKAR ACHARYYA
 C.R.R. No. 3963 of 2013
 In the matter of :
Priti Dey (Chandra)
Vs.
Subhasish Dey & Anr.

Judgment on : 06.04.2016
Citation: 2016 CRLJ4329

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Whether second marriage after divorce will be void?

 In the case at hand, the petitioner-husband

solemnized his second marriage only after obtaining a decree of

divorce. When he solemnized his second marriage after the

decree of divorce, the second marriage, notwithstanding the

fact that the ex parte decree of divorce has, now, been set

aside, cannot be treated as a nullity. In fact, even when a

person solemnizes his second marriage, before the expiry of

the statutory period of appeal, his second marriage is still not a

nullity inasmuch as Section 5 of the Hindu Marriage, Act, 1955,

permits solemnization of marriage between two Hindus if

neither party has „spouse’ living at the time of marriage. In

order to, therefore, treat the subsequent marriage a nullity, it

will have to be presumed that the parties to the divorce are still

spouses even when their marriage has been dissolved by a

decree of divorce. This is legally not permissible inasmuch as a

decree of divorce, unless stayed by an order of superior court,

snaps the relationship between the parties and, hence, they are

not treated as spouse or else, such second marriage, prior to

expiry of appeal period, would have rendered the subsequent

marriage void under Section 11 of the Hindu Marriage Act,

1955.

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Review No.4 of 2016

IN

MA 513 of 2009

Sri Rajesh Kumar 

Versus

Smt. Pushpa Rani 

Citation: 2016 SCC OnLine Pat 4639

CORAM: HONOURABLE THE CHIEF JUSTICE

and

HONOURABLE JUSTICE SMT. NILU AGRAWAL

ORAL JUDGMENT

(Per: HONOURABLE THE CHIEF JUSTICE)

Date: 16-09-2016

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How to appreciate evidence in case of petition for annulment of marriage?

Voidable Marriages (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds , namely xxx xxx xxxx

(b)that the marriage is in contravention of the conditions specified in clause (ii) of section 5.

Section 5 provides that a marriage may be solemnized between any two Hindus if the conditions specified in the section are fulfilled. Amongst the other conditions stated therein in sub-section (ii) it is laid down that at the time of marriage neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind or though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children. The clause lays down as one of the conditions for a Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder, insanity or epilepsy and section 12(1)(b) refers that any marriage shall be voidable and may be annulled if the marriage is in contravention of the condition specified in clause (ii) of section 5. On a plain reading of the said provision it is manifest that the conditions prescribed in that section, if established, disentitles the party to a valid marriage. The marriage is not per se void but voidable under the clause. Such conditions in the very nature of things call for strict standard of proof. The onus of proof is very heavy on the party who approaches the Court for breaking a marriage already solemnized.

An objection to a marriage on the ground of mental incapacity must depend on a question of degree of the defect in order to rebut the validity of a marriage which has in fact taken place. As noted earlier, the onus of bringing a case under this clause lies heavily on the petitioner who seeks annulment of the marriage on the ground of unsoundness of mind or mental disorder. The court will examine the matter with all possible care and anxiety.

Supreme Court of India

R. Lakshmi Narayan vs Santhi on 1 May, 2001

Bench: D.P. Mohapatra, U.C. Banerjee

           CASE NO.:
Appeal (civil) 5028  of  1999

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Whether child born from void marriage between Hindu father and christian mother will be christian?

The Apex Court in Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr. (AIR 1988 SC 644) pointed out that S.5 of the Hindu Marriage Act specifically says that marriage can be solemnised only between two Hindus. Admittedly in this case Adichan Nadar is a Christian. Therefore, the finding of the learned Single Judge that the marriage is valid cannot be sustained. We hold that the marriage in question is not a valid one under the Hindu Marriage Act. We are therefore inclined to set aside the judgment of the learned Single Judge that the marriage between the fourth defendant with Mariya Augustine is valid.

7. The next question to be considered is whether children born in that marriage could form members of the joint family as per the Hindu Law and whether the children have to be treated by the religion of the father or mother. N.R. Raghavachary's Hindu Law at page 21 states as follows:

"Illegitimacy is no bar to the applicability of the Hindu Law, but in that case either both the parents must be Hindus, or at least the mother must be a Hindu and the child brought up as a Hindu, though the father is a Christian. If the mother is a non-Hindu, for instance, a Christian, or a Mohammedan, Hindu Law has no application to the illegitimate child, the reason being that the religion of such children is to be fixed by the religion to which the mother belongs."

Marriage between Christian lady and Hindu: childre{,born outof that marriage are

Christian : Hindu law has no application to illegitimate child : religion of such children

to be fixed by religion to which mother belongs.

Kerala High Court

Vijayakumari vs Devabalan on 17 July, 2003

Equivalent citations: AIR 2003 Ker 363, I (2004) DMC 667, 2003 (3) KLT 695

Bench: K Radhakrishnan, P C Kuriakose

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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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HC nullifies man's third marriage under Hindu Act

MUMBAI: The Bombay High Court has come to the rescue of a Pune resident who claimed that he was forcibly married to his third wife.

A division bench of Justice Vijaya Kapse Tahilramani and Justice A R Joshi declared that the 2009 marriage of Dilip Patil to Seema Patil (names changed) was "null and void" as his second wife was alive at the time of the marriage.

The court cited provisions of the Hindu Marriage Act, which says that the marriage was "void if any of the parties has a spouse living at the time of the marriage."When Dilip got married to Seema on July 16, 2009, his earlier marriage with Sheetal was still in existence. Thus he had a spouse living on (the day of his third marriage). Hence, their marriage is clearly a void marriage," observed the judges.

Dilip married Sheetal in 2003 after his first wife died in 2000. He has a son from each of his two marriages.

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