Allahabad High Court
Sajal Sharma vs State Of U.P. And 3 Others on 31 August, 2017
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 59 Case :- WRIT - A No. - 39696 of 2017 Petitioner :- Sajal Sharma Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Anil Kumar Pandey Counsel for Respondent :- C.S.C. Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner and Sri Bipin Bihari Pandey, learned Additional Chief Standing Counsel appearing for the State respondents.
The petitioner claims to be the son from the second wife of the late Mewaram Sharma who was working as a Class IV employee in the office of Tehsil Sadar, Agra (Nazarat Department). The said employee is stated to have died while in service on 30 December 2016. Subsequent thereto, the petitioner moved an application on 14 February 2017 claiming compassionate appointment. This application has been rejected by the District Magistrate holding that the second marriage of late Mewaram Sharma was void and therefore the petitioner would have no right to seek consideration of his appointment on compassionate ground. This finding, significantly, is recorded although the impugned order does record that no competing claims had been recieved.
Bearing in mind the nature of issues which had been raised in this writ petition and which were purely legal in character, Sri Bipin Behari Pandey, the learned Additional Chief Standing Counsel has agreed for the disposal of the writ petition without filing a counter affidavit at this stage since the consideration by the Court is confined to the question of whether the petitioner would be entitled to be considered under the 1974 Rules or not.
The Court notes that the sole consideration which has weighed with the respondent is a perceived illegitimacy of the petitioner on account of he having been borne from the second wife of the deceased employee. The respondent No.2 has proceeded on the basis that since the second marriage was contracted while the first wife was still alive, not only was the marriage liable to be treated as void, even the rights of a child born from such a second marriage would stand nullified by operation of law.
This in the considered view of the Court does not appear to be the correct position when viewed in light of the provisions of the Hindu Marriage Act 1955. The view taken by the respondents is clearly in conflict with the statutory mandate of section 16 of the 1955 Act. Section 16 being relevant for our purposes is extracted herein below:-
Legitimacy of children of void and voidable marriages.--(1) Notwithstanding that a 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, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.
(3) 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 his not being the legitimate child of his parents."
A plain reading of the aforesaid provision clearly establishes that a child borne out of a marriage which may be in violation of the injunct placed by section 11, would not be liable to be viewed as illegitimate. The fact that the marriage is or is likely to be declared as void, does not change the character of a child borne of such a marriage and he remains the legitimate child of the father. His rights are conferred statutory protection by the aforesaid provision. This position in law has been noticed and recognised by the Supreme Court in various decisions and for our purposes it would be relevant to refer to the following passage as it appears in Vidyadhar Vs. Sukhrana Bai1
13. This Court in Rameshwari Devi case [(2000) 2 SCC 431 : 2000 SCC (L&S) 276] has held that even if a government servant had contracted second marriage during the subsistence of his first marriage, children born out of such second marriage would still be legitimate though the second marriage itself would be void. The Court, therefore, went on to hold that such children would be entitled to the pension but not the second wife. It was, therefore, bound to be considered by the High Court as to whether Vidhyadhari being the nominee of Sheetaldeen could legitimately file an application for succession certificate and could be granted the same. The law is clear on this issue that a nominee like Vidhyadhari who was claiming the death benefits arising out of the employment can always file an application under Section 372 of the Succession Act as there is nothing in that section to prevent such a nominee from claiming the certificate on the basis of nomination. The High Court should have realised that Vidhyadhari was not only a nominee but also was the mother of four children of Sheetaldeen who were the legal heirs of Sheetaldeen and whose names were also found in Form A which was the declaration of Sheetaldeen during his lifetime. In her application Vidhyadhari candidly pointed out the names of the four children as the legal heirs of Sheetaldeen. No doubt that she herself has claimed to be a legal heir which status she could not claim but besides that she had the status of a nominee of Sheetaldeen. She continued to stay with Sheetaldeen as his wife for long time and was a person of confidence for Sheetaldeen who had nominated her for his provident fund, Life Cover Scheme, pension and amount of life insurance and amount of other dues. Under such circumstances she was always preferable even to the legally wedded wife like Sukhrana Bai who had never stayed with Sheetaldeen as his wife and who had gone to the extent of claiming the succession certificate to the exclusion of legal heirs of Sheetaldeen. In the grant of succession certificate the court has to use its discretion where the rival claims, as in this case, are made for the succession certificate for the properties of the deceased. The High Court should have taken into consideration these crucial circumstances. Merely because Sukhrana Bai was the legally wedded wife that by itself did not entitle her to a succession certificate in comparison to Vidhyadhari who all through had stayed as the wife of Sheetaldeen, had borne his four children and had claimed a succession certificate on behalf of children also. In our opinion, the High Court was not justified in granting the claim of Sukhrana Bai to the exclusion not only of the nominee of Sheetaldeen but also to the exclusion of his legitimate legal heirs.
In a subsequent decision in Ravanasiddappa Vs. Mallikarjun2, the Supreme Court differed with the view taken by earlier benches with respect to section 16 (3) and the restriction on the rights of inheritance of a child borne out of a void marriage and has referred the matter for consideration by a larger bench. However on the principle of the child being treated as legitimate there was no dilution of the earlier decisions as would be evident from the following observations:-
32. The constitutional validity of Section 16(3) of the Hindu Marriage Act was challenged before this Court and upholding the law, this Court in Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi [(1996) 4 SCC 76] held that the Hindu Marriage Act, a beneficial legislation, has to be interpreted in a manner which advances the object of the legislation. This Court also recognised that the said Act intends to bring about social reforms and further held that conferment of social status of legitimacy on innocent children is the obvious purpose of Section 16 (see para 68).
33. In para 75, p. 101 of the Report in Kalliani Amma [(1996) 4 SCC 76] , the learned Judges held that Section 16 was previously linked with Sections 11 and 12 in view of the unamended language of Section 16. But after amendment, Section 16(1) stands delinked from Section 11 and Section 16(1) which confers legitimacy on children born from void marriages operates with full vigour even though provisions of Section 11 nullify those marriages. Such legitimacy has been conferred on the children whether they were/are born in void or voidable marriage before or after the date of amendment.
36. With the amendment of Section 16(3), the common law view that the offspring of marriage which is void and voidable are illegitimate "ipso jure" has to change completely. We must recognise the status of such children which has been legislatively declared legitimate and simultaneously law recognises the rights of such children in the property of their parents. This is a law to advance the socially beneficial purpose of removing the stigma of illegitimacy on such children who are as innocent as any other children.
39. We are constrained to differ from the interpretation of Section 16(3) rendered by this Court in Jinia Keotin [(2003) 1 SCC 730] and, thereafter, in Neelamma [(2006) 9 SCC 612] and Bharatha Matha [(2010) 11 SCC 483 : (2010) 4 SCC (Civ) 498 : AIR 2010 SC 2685] in view of the constitutional values enshrined in the Preamble of our Constitution which focuses on the concept of equality of status and opportunity and also on individual dignity. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents. A child born in such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage. This is the crux of the amendment in Section 16(3). However, some limitation on the property rights of such children is still there in the sense their right is confined to the property of their parents. Such rights cannot be further restricted in view of the pre-existing common law view discussed above." (emphasis supplied) This issue, the Court notes, also fell for consideration before a learned Single of the Court in Kum Priti Vs. State of U.P. 3. Learned counsel has rightly placed reliance upon the observations which appear in paragraph 4 of the said decision and read thus:-
"4. Learned Standing Counsel submits that a Government servant under the Rule 29 of the U.P. Government Servants Conduct Rules, 1956 is not entitled to marry while his first wife is alive and that the children born out of such second marriage cannot be recognised to be legitimate for the purposes of employment under the Rules of 1974. Section 11 of the Hindu Marriage Act, 1955 declares the second marriage, while first wife is alive under Section 5 (i) to be a void. Section 16 of the Hindu Marriage Act, 1955, however, provide 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, whether such child is born on or after commencement of the Marriage Laws (Amendment) Act, 1976 and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under the Act."
In view of the settled position of law, the stand taken by the second respondent is rendered unsustainable. The second respondent would thus be obliged to consider the claim of the petitioner without being influenced by the fact that he was borne of a second marriage contracted by the late Mewaram Sharma. This order shall not, however, preclude the second respondent from considering any competing claim that may be received in respect of grant of compassionate appointment by the heirs of the late Mewaram Sharma, either from his first wife or from his second marriage.
Accordingly this petition shall stand allowed. The impugned order dated 17 August 2017 is hereby set aside. The District Magistrate shall now proceed in the matter afresh and in light of the observations made herein above.
Order Date: - 31 August 2017 (Yashwant Varma, J.)
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