Illegitimate child born of a void marriage entitled to maintenance.

1. The only substantial question of law formulated for consideration at the time of admission of second appeal reads thus:

“Whether the lower appellate court, while rejection the claim of 1st respondent for maintenance, has not committed an error of law in granting maintenance to 2nd respondent is not the legitimate son of the appellant even as per the lower appellate court.”

2. Defendant in O.S.No.595 of 1989 on the file of District Munsifs Court, Gingee, is the appellant herein.

3. Suit was filed by his wife and minor son, claiming maintenance under Sec.18 of the Hindu Adoptions and Maintenance Act.

4. In this Judgment, reference to parties will be according to their rank in the suit.

5. First plaintiff claimed that she is the legally wedded wife of defendant, and in their wedlock, second plaintiff was born to them. It is said that the marriage was according to Custom prevalent in their community. It is also said in para 3 of plaint that at the instance of his first wife, defendant is not properly, looking after her affairs and also that of her son, and she has to maintain the second plaintiff only by doing hard labour. It is said that the defendant is bound to maintain them, and it is a moral as well as statutory obligation.

6. In the written statement filed by defendant, he disputed the marriage. He was already married to the elder sister of first plaintiff in which he has got two daughters. When there was a first marriage existing, it was impossible for him to contract another marriage. He denied that second plaintiff was born to him through first plaintiff. He prayed for dismissal of the suit.

7. Trial court took oral and documentary evidence. Exs.A-1 to A-20 were marked on the side of plaintiffs. Exs.B-1 to B-10 were marked on the side of defendant. 1st plaintiff was examined as P.W.1, and five other witnesses were examined on the side of plaintiffs. Defendant examined himself as D.W.1 and examined another witness namely his wife as D.W.2.

8. Taking into consideration the entire evidence, the trial court held that both the plaintiffs are entitled to maintenance, It further held that there was marriage between defendant and first plaintiff, and second plaintiff was born in that wedlock. Rs.300 and Rs.400 were awarded as maintenance to plaintiffs respectively. Arrears of maintenance was also awarded.

9. Defendant preferred A.S.No.496 of 1994 before Sub Judge, Villupuram. Lower appellate court affirmed the finding that there was marriage between defendant and first plaintiff, but declared the same as null and void since the first marriage was subsisting. Consequently that part of the decree which gave the first plaintiff maintenance was set aside, and the appeal was allowed to that extent. In regard to second plaintiff, the decision of the trial court was affirmed. It was held that second plaintiff was born in that marriage and though he is an illegimate son of defendant, he is entitled to maintenance, under Sec.16 of the Hindu Marriage Act read with Secs.21 and 22 of the Hindu Adoptions and Maintenance Act. It is this finding that is challenged by defendant in this second appeal.

10. At the time of argument, learned counsel for respondent/ plaintiff wanted this Court to invoke the power under O.41, Rule 33, C.P.C. Reason for advancing such an argument is that even though first plaintiff has not preferred first appeal or cross-appeal, denial of maintenance to first plaintiff by lower appellate court is illegal. I Will consider this argument at the appropriate stage.

11. While considering the substantial question of law, the only point urged by learned counsel for appellant/ defendant is that in the plaint the details of the marriage are not given, nor about the ceremonies, and the allegations are vague. It is further contended by learned counsel that even on the basis of evidence, it cannot be said that any marriage, was performed. Only if there was a marriage, the question whether it is void will arise, and, if t