( 1. ) THE only question to be decided in this Second Appeal is whether, under Section 16( 1) of the Hindu Marriage Act, 1955, a Court can legitimise a son, born before the marriage of his parents, when the first marriage of the father of the child with another person, was subsisting, when the child was born.

( 2. ) THE General Manager, Southern Railways and two others, have challenged the judgments and decrees of the Courts below. declaring one T. Mathiarasan, as the legitimate son of the plaintiff and K. Mohanambal, whose marriage had been registered subsequent to the birth of their son. THE child was born on 28.9.1993. F.C.O.P. No. 1389 of 1994, was filed by the father of the Child, for dissolution of his marriage, with one Muthulakshmi in 1994, after the birth of the child. Divorce with the first wife, was granted in the year 1995. THE marriage with K. Mohanambal, mother of the child was registered on 2.2.1996. For sake of convenience, the parties are addressed as per the letigative status in the lower Court.

( 3. ) PLAINT averments in detail are as follows: The plaintiff is a Head Constable working in the office of the Assistant Security Commissioner, RPF., Crime Intelligence Branch, Chennai, third defendant. He married one Muthulakshmi on 9.9.1984 and owing to a rift in the family, he filed F.C.O.P. No. 1389 of 1994, before the Second Additional Family Court, Chennai. A decree of divorce was granted on 6.7.1995. Thereafter, he married one K. Mohanambal on 2.2.1996 and that the said marriage was registered by the Marriage Registering Authority, Chennai. Thereafter, he sought for inclusion of the name of his wife, K. Mohanambal and his son, T. Mathiarasan, in the Official records. He was born on 28.9.1993. The third respondent, by his order, dated 2.7.1996, directed inclusion of the name of K. Mohanambal in the official records. However, insofar as his son, the Senior Security Commissioner, RPF, Southern Railway, Chennai, second defendant, by his letter, dated 25.4.1996, informed the plaintiff, stating that he should file a declaratory suit, before the competent Court and produce a decree, declaring that his son, T. Mathiarasan, was born to him. It is the admitted case of the plaintiff that T. Mathiarasan was born on 28.9.1993, i.e, prior to registration of his marriage with K.Mohanambal.

( 4. ) IN these circumstances, the plaintiff caused a notice on 18.6.1996, under Section 80 C.P.C. to defendants 1 and 2. stating that no declaration from any competent Court is necessary, as he had already furnished the marriage and birth certificates and that therefore, there is no impediment to include the names of both his wife and son. in the official records, as his legal heirs. As there was a failure on the part of the respondents, making necessary entries in the Service Register, the plaintiff has filed the suit to declare that T. Mathiarasan, as his legitimate son and K.Mohanambal as his wife. Consequently, he has sought for a direction to the defendants to include K. Mohanambal and T. Mathiarasan, in his official records, as his legally wedded wife and his legitimate son respectively.

( 5. ) THE second defendant in his written statement, admitted that the plaintiff is employed as a Head Constable/RPF, in the Office of third respondent, and his first wife was Muthulakshmi. As per the decision of the learned Second Additional Principal Judge, Family Court, Madras in F.C.O.P. No. 1389 of 1994, dated 6.7.1995, the name of the first wife, Muthulakshmi, has been deleted in all official records, with effect from 6.7.1995, vide memo, dated 27.9.1995. THE second marriage with one K. Mohanambal on 2.2.1996, has been entered in the official records. However, the inclusion of T.Mathiarasan was not done, as the plaintiff had not disclosed the birth of T. Mathiarasan, on 28.9.1993 or at any point of time. Further, it was also contended that the birth of T. Mathiarasan, during the subsistence of first marriage, was a serious misconduct,