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The Special Leave Petition is disposed of permitting the petitioners to file a review application before the High Court. If it is filed within thirty days, the same will be considered on merits."

2. Inter alia, the review petition was filed.

3. The learned Counsel for the petitioner has submitted that while passing the order, certain facts are not taken into account proving the validity of the marriage on 22.6.1981 of Indubai and Jaydeo. He submitted that if the age of Draupada and her date of rpf.19.2016.doc marriage are valid then it shows that Draupada was 11 years old and it itself nullifies the claim of Draupada that she got married first with Jaydeo. He further submitted that the evidence of Gram Sevak that the third entry in the marriage register of Draupada and Jaydeo was made subsequently is not considered. He further submitted that under the Right to Information Act, after the first appeal, legal heir of Indubai i.e., Shubhangi, contacted the printing press where the wedding cards of Draupada and Jaydeo allegedly published in the year 1979. However, the press itself came into existence in the year 1991, so the wedding card is fabricated. He submitted that this evidence is required to be considered. He further argued that under section 16 of the Hindu Marriage Act, Shubhangi, the daughter of Indubai, has right in the property of her father even though the claim of Indubai is rejected on the ground of void marriage. He produced a birth certificate of Shubhangi dated 22.9.1987. He also relied on the order of maintainance dated 12.4.1994 which was granted by the learned JMFC, Vita, District Sangli in Criminal Miscellaneous Application No.225 of 1989 passed under section 125 of the Code of Criminal Procedure. He also relied on a purshis filed by Indubai earlier in the maintainance proceedings seeking permission to withdraw the rpf.19.2016.doc matter as Indubai again started residing with Jaydeo and the said purshis was allowed on 28.5.1985.

5. Mr.Kothari, the learned Counsel has submitted that in this review petition, the validity of the marriage of Draupada cannot be challenged and cannot be decided. He argued that the paternity of Jaydeo as father of Shubhangi is doubtful. There are witnesses, who had appeared before the trial Court, who gave evidence that Indubai earlier had married twice. There is no evidence to show that Shubhangi is the daughter of Jaydeo. He further submitted that there is no evidence to show that when her earlier second rpf.19.2016.doc marriage was dissolved. Under section 16 of the Hindu Marriage Act, an illegitimate child who is claiming right in the property should be born out of void marriage. If there is no marriage at all, then, that illegitimate child cannot be given benefit under section 16. He further submitted that there is no basis as to the assumption of paternity of Jaydeo as father of Shubhangi. He further submitted that the evidence of maintainance proceedings is a negative evidence that as she got maintainance and therefore, it is to be presumed that she was the wife, is not a logical proposition. A marriage cannot be proved on the basis of this order. He further submitted the purshis of withdrawal of proceedings under section 125 by Indubai, which is relied by the learned Counsel for the petitioner is neither joint purshis nor the signature of Jaydeo is appearing. Therefore, Shubhangi has no right to ask for pensionary amount.

24. Thus the submissions of Mr.Kothari that there should be a void or voidable marriage to attract legitimacy to the illegitimate child, are accepted. However, the facts of the present case and the evidence tendered herein are not in his favour.

25. In the present case, there is evidence to show that the petitioner deceased Indubai has stayed with the deceased Jaydev Pawar for a long time and has got married on 22.6.1981. The daughter Shubhangi was born within this relationship. The registration of the birth discloses that the name of the deceased is Jaydev Pawar as her father at the time of her birth. Under such circumstances, it can very well be said that in the present case, there is evidence to show that marriage was solemnized between Jaydeo and Indubai and the child was born. Further, I rely on the judgement of the trial Judge who passed the order of maintainance under section 125 of the Code of Criminal Procedure and the said rpf.19.2016.doc order of maintainance to Indubai was confirmed by the High Court. I also rely on the contentions raised by the respondent in her matrimonial proceedings wherein the status of Indubai is challenged on the ground of "void marriage" and not that there was no marriage at all. Thus, it can be considered as an admission on the part of the respondent of the void marriage between Jaydeo and Indubai. Once it is found that there is overall evidence of long stay of Indubai and Jaydeo and void marriage between Indubai and late Jaydev, then, Indubai was married earlier twice or not and whether petitioner/Shubhangi was born before Indubai's earlier marriage was legally dissolved, are immaterial issues. I also sift through the evidence which shows that there was some performance of marriage between late Jaydev Pawar and the petitioner. Thus, though the second wife is not entitled to any pensionary benefit as the marriage was not valid between them, a girl child, Shubhangi, who was begotten within such relationship, benefit of legitimacy is available to her under section 16. Hence, she will have a similar right like other legitimate children of Jaydeo in the property of Jaydeo. To that extent, the review petition is allowed.