Children borne out of void marriages
Rajesh Tandon
(Querist) 21 December 2012
This query is : Resolved
1. This is a query related to earlier query of children born out of void marriages pertaining to a case of Deceased Ex-Servicemen (ESM)which was beautifully answered by Mr Tajobsindia. The need for reopening the case further for additional querries is the latest developments.
2. A small brief to Recapitulate -The deceased ESM has one Daughter A, who is currently unemployed and unmarried from divorce mother i.e from first marriage of her father entitled for share of pension along with Wife B(second wife after divorce) as per the clause of division of pension under pension regulations. Incidentally Wife B(second wife after divorce) does not have any children. The details of the record of children from the first wife and name of second wife B are duly entered in the record of ESM held with Army authorities. As far as the matter of division of pension between Daughter A and Wife B is concerned, it is almost a clear situation. However, what is not clear is the latest development, which is that a third claimant for the pension i.e a daughter from third lady Daughter C has suddenly appeared in front of Army authorities. Based on the claim from the third-party, authorities in Army Headquarter have decided to distribute pension between three parties. It has been learnt during the interaction with Daughter A that Daughter C is from a Maid servant D who used to work for her father.
3. Latest developments- The woman i.e Maid servant D has submitted the following documents to Army headquarter:-
a) marriage certificate,
b) the affidavit given by ESM while he was in hospital,
c) affidavit signed by her that she i.e woman D is the wife of the ESM requesting for pension for the daughter
d) birth certificate of the daughter C issued by Nagar Nigam
e) Joint Account of ESM with Maid servant D and the daughter C
4.Now all these documents are with the Army Headquarter. The daughter A is filing RTI to get the copies of these documents to check their authenticity.However as per Army Headquarter, the subject marriage of Maid servant D with ESM is not valid since the second wife i.e Wife B is still alive. Also, the Army authorities are not aware as to if Maid servant D has filed any civil suit or petition to establish the claims regarding her marriage-valid or invalid in the eyes of the law.
5. Additional querries-These are as under:-
a) Query Number 1- in previous discussion, Mr Tajobsindia had clarified that If a child’s mother has not made any claims regarding her marriage — valid or invalid in the eye of law — no provision of Hindu Marriage Act or Succession Act shall apply and the child will be left with no remedy under the law over his father’s properties which also includes share in Pension of deceased Army man. Since, it is not known till now whether or not Maid servant D has filed any civil suit or petition to establish the claims regarding her marriage-valid or invalid in the eyes of the law so does the marriage certificate submitted by her holds good to establish her claim of marriage with the ESM?(Especially when she has married as per marriage certificate in the lifetime of wife B). Though the authenticity of the marriage certificate as to whether driven by the registrar of marriage is yet to be checked and it can only be checked once the authenticated copies of the same are received under RTI by daughter A.
b) Query Number 2-what is the authenticity of affidavit of marriage given in case marriage of a person with another person itself is doubtful?
c) Query Number 3-under what conditions an affidavit can be given by a person in hospital? What is the procedure for the same ?Isn't the mental state of a person important at the time of giving the affidavit?
d) Query Number 4- Is just an affidavit given by Maid servant D alone by herself claiming to be wife of ESM and thereby requesting for pension for her daughter holds good?
e) Query Number 5-As far as birth certificate is concerned, it does not prove marriage. Birth can be attributed to illicit relationship. This aspect was upheld in criminal appeal No 268 of 1996 dated 22/02/2007 in the Bombay High Court(file number-17495) in the case of Snehlata Kailash Ingale & Ors Vs kailash Rajaramji Ingale. It was also brought out that the evidence does not dispose that essential ceremonies for marriage which have been held to be mandatory to prove the offence of bigamy were performed. Further reliance was placed on the decision of Orissa High Court in Smt . Dhara Dei v. Prafulla 1984(2) Crimes397 to hold that birth certificate of a person does not prove marriage between the persons named as father and mother in birth certificate and birth could be attributed to illicit relationship between persons named in the birth certificate. Therefore the query is that even if based on the document submitted by maid servant D ,prima facie it appears to be a case of Bigamy, but what is the procedure to ascertain/ rule out that daughter C is actually born out of the wedlock between the ESM and maid servant D not out of illicit relationship? Is it is not necessary that the same fact to be established by due process of law i.e by the judicial proceedings rather than accepting the the birth of the child i.e daughterC from the wedlock between ESM and maid servant D based on the birth certificate only?
Raj Kumar Makkad
(Expert) 21 December 2012
1. Children born out of void marriage are also entitled to claim for the share in the property left by their father so the claim of C cannot be denied merely on the ground that her mother D had not filed a case in the court seeking her marriage valid or invalid.
2. It authenticity is required to be verified from the office of Registrar of marriages which issued marriage certificate.
3. Yes. Doctor treating such patient is required to verify his mental and physical condition of deposing otherwise none can believe upon such suspicious affidavit.
4. No.
5. Marriage is required to be proved though the same is void.
The citations told by you are defnitely helpful for A & B so a civil suit is required to be filed against the illegal judgment of the authorities concerned.
Raj Kumar Makkad
(Expert) 21 December 2012
Obtain a sty order against such order till the finalization of the civil suit.
Rajesh Tandon
(Querist) 21 December 2012
Thx a lot Mr Raj Kumar makkad for your prompt & precise reply. i amm extrmely grateful to you for presenting a clear picture. However, I would appreciate if you could clarify one more aspect for my general awareness i.e supposingly there is absence of a marriage certificate but however two persons give an affidavit in support of their marriage that too questionable/suspicious marital relationship, does this affidavit hold good or the acid test for deciding such marriage issue is only the court/due process of law? Regards.
Raj Kumar Makkad
(Expert) 21 December 2012
Why do you talk of only 2 affidavits, people may gather plenty of affidavits in support of a greedy person if it finds benefit to do so. Supporting affidavits are of no use unless the claim is established on the basis of acid test as per law. Only legally established marriage holds,
Rajesh Tandon
(Querist) 21 December 2012
Thx a ton. Experts like you are rendering yoman service for common citizens.With my profound Regards to you.Good night.
Raj Kumar Makkad
(Expert) 21 December 2012
Thanks for your appreciation and gud nite.
