Rights of children of seprated parents in anyones property

U can refer this.

CASE NO.:

Appeal (civil) 7247 of 1995

PETITIONER:

Jinia Keotin & Ors.

RESPONDENT:

Kumar Sitaram Manjhi & Ors.

DATE OF JUDGMENT: 20/12/2002

BENCH:

Doraiswamy Raju & Shivaraj V. Patil.

JUDGMENT:

J U D G M E N T

D. Raju, J.

The plaintiff (1st respondent herein) filed the suit claiming for 1/6th share

in Schedules A to D properties and 1/3rd share in Schedule E properties. From

the indisputable facts on record, the ancestral properties have to be divided

firstly between Sahadeo Manjhi, his brother Mahadeo Manjhi (defendants Nos. 1 &

2) and their mother Dukhani Keotin (defendant No.7) each one getting 1/3rd

share. Out of the 1/3rd share of Sahadeo Manjhi , the properties again will be

equally divided in four parts each one of the sharers getting 1/4th share.

Defendants 8 to 11 are said to be not entitled to any share on account of the

fact that the marriage of the 1st defendant with the 8th defendant was void for

the reason that his first wife, Smt. Kamli Devi, was alive and the first

marriage still subsisting. The second marriage remarriage, of 1st defendant with

the 8th defendant after the coming into force of the Hindu Marriage Act, 1955

cannot be valid. The learned 2nd Additional Subordinate Judge, Dumka, passed a

preliminary decree on 27.9.1983 in Title Suit No.40 of 1975 (3 of 1983) for the

1/4th share of the plaintiff in the suit properties out of the 1/3rd, which has

got to be allotted to the share of the 1st defendant. On appeal in Title Appeal

No.43 of 1983 before the learned Ilnd Additional District Judge, Dumka, the

learned First Appellate Judge by his Judgment dated 13.7.1990 also held that the

1st defendant could have remarried the 8th defendant only after 1957 when the

judgment of acquittal came to be passed in the criminal case against him for an

offence under Section 498, IPC.

In the light of the above, the plaintiff was held entitled to 1/9th share in

the Suit A to D Schedules properties and the children of Sahadeo through Smt.

Jinia Keotin were held not entitled to any share in the coparcenary property in

terms of Section 16(3) of the Hindu Marriage Act, 1955, though they may claim to

be entitled to their due share in the property of their parents. During the

pendency of the said appeal, the Sahadeo Manjhi died and consequently his 1/9th

share was held to devolve upon all his heirs the plaintiff, daughter, defendant

No.6- the mother, defendant No.7, the wife, defendant No.5 and his sons from

Smt. Jinia Keotin, viz., defendant Nos.9, 10 and 12 and appellant No.7. Since

defendant No.11 died even during the lifetime of Sahadeo Manjhi, he was not

entitled to any share. Each of the eight heirs of Sahadeo Manjhi was held

entitled to inherit an equal share of 1/72 out of the said 1/9th share. The

plaintiff was, therefore, held entitled to 2/72 equal to 1/8th share in the

coparcenary property comprised in A to D Schedules. The appeal was allowed on

the above terms and to the extent indicated. Not satisfied, the matter was

pursued by the 2nd wife and her children on Second Appeal in S.A. No.315 of 1991

before the High Court of Patna. The said appeal was dismissed on 20.12.1991.

Hence, the above appeal by them before this Court.

Shri Lakshmi Raman Singh, the learned counsel for the appellants, while

reiterating the stand taken before the Courts below, vehemently contended that

once the children born out of void and illegal marriage have been specifically

safeguarded under Section 16, as amended by the Central Act 68 of 1976, there is

no justification to deny them equal treatment on par with the children born of

wife in lawful wedlock by countenancing claims for inheritance even in the

ancestral coparcenary property. It was also contended by the learned counsel

that inasmuch as but for the Hindu Marriage Act, 1955 there was no prohibition

for an Hindu to have more than one wife and it is by virtue of the said Act such

marriages became unlawful or void, once the legislature by amendment of Section

16 chosen to legitimatise the children born of such void marriages, the

prohibition must be held to have been relaxed and the stigma wiped out so as to

render the progeny, legitimate for all purposes and, therefore, the provisions

of Section 16(3) of the Act also should be construed keeping in view the

totality of circumstances and the object and purpose of the legislation in

respect of right to inherit property also like the children born out of lawful

wedlock. Per contra, Shri H.L. Agrawal, learned senior counsel, with equal force

contended that acceptance of the plea on behalf of the appellants would amount

to rewriting the enactment which has expressed the legislative mandate in clear

terms in Section 16(3) and, therefore, no exception could be taken to the

concurrent view taken by the courts below, in this regard.

We have carefully considered the submissions of the learned counsel on either

side. The Hindu Marriage Act underwent important changes by virtue of the

Marriage Laws (Amendment) Act, 1976, which came into force with effect from

27.5.1976. Under the ordinary law, a child for being treated as legitimate must

be born in lawful wedlock. If the marriage itself is void on account of

contravention of the statutory prescriptions, any child born of such marriage

would have the effect, per se, or on being so declared or annulled, as the case

may be, of b*st*rdizing the children born of the parties to such marriage.

Polygamy, which was permissible and widely prevalent among the Hindus in the

past and considered to have evil effects on society, came to be put an end to by

the mandate of the Parliament in enacting the Hindu Marriage Act, 1955. The

legitimate status of the children which depended very much upon the marriage

between their parents being valid or void, thus turned on the act of parents

over which the innocent child had no hold or control. But, for no fault of it,

the innocent baby had to suffer a permanent set back in life and in the eyes of

society by being treated as illegitimate. A laudable and noble act of the

legislature indeed in enacting Section 16 to put an end to a great social evil.

At the same time, Section 16 of the Act, while engrafting a rule of fiction in

ordaining the children, though illegitimate, to be treated as legitimate,

notwithstanding that the marriage was void or voidable chose also to confine its

application, so far as succession or inheritance by such children are concerned

to the properties of the parents only.

So far as Section 16 of the Act is concerned, though it was enacted to

legitimise 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 his 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 rights 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 relegislating 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.