JUDGMENT :

Pradipta Ray, J. - One Durga Charan Maharana died in harness on June 15, 1996 while he was working as a lineman-B under Grid Corporation of Orissa. Kanaklata Maharana, the widow of Durga Charan Maharana, the present appellant, submitted claims before the concerned authority to receive death benefits like family pension, gratuity, provident fund etc. She also obtained a legal heir certificate from the Tahasildar, Khurda in support of her claim.

2. Shantilata Maharana and her son Sri Dukhabandhua Maharana, respondent Nos. 1 & 2 herein, put forward a claim before the authority that she was married to Durga Charan in 1973 and she is his first wife and that Dukhabandhu, respondent No. 1, was born out of the wedlock between her and Durga Charan. According to them, during subsistence of the first marriage with her, Durga Charan married Kanaklata and such second marriage being void, Kanaklata and her children cannot have any claim to any death benefit of Durga Charan.

3. As the dispute before the authorities remained unresolved, Shantilata and Dukhabandhu filed civil proceeding No. 268 of 1996 in the Family Court, Cuttack, for a declaration that Shantilata is the legally married wife of Durga Charan and Dukhabandhu is his legitimate son through her. Kanaklata, defendant No. 1, in the said civil proceeding, contested the suit by filing a written statement. In her written statement she denied the alleged first marriage with Shantilata and claimed to be the only legally married wife of Durga Charan. Kanaklata has also alleged that Shantilata was married to one Sadasiva before her alleged marriage with Durga Charan.

4. By judgment and decree dated September 27, 1999, the Family Court, Cuttack, upheld the claim of Shantilata and Dukhabandhu are entitled to get the death benefits of deceased Durga Charan Maharana. Being aggrieved, Kanaklata Maharana has filed this appeal.

5. In course of hearing, the learned Advocate for the appellant on instruction from Kanaklata, who is personally present in Court, states that she does not want to pursue the dispute regarding the marriage of Shantilata. It is, however, pointed our that under the provisions of Hindu Marriage Act even if Kanaklata is the second wife and marriage is void, the children born out of second marriage are legitimate children and they are entitled to their share in the death benefits of their father. It is pointed out that the dispute has been going on since 1996 and it has become difficult for Kanaklata and her children to maintain themselves without receiving any part of the death benefit.

6. Before the Family Court both the sides have led evidence. On consideration of the materials on record, the Family Court has found that Shantilata was married to Durga Charan in 1973. Even ignoring the concession of the present appellant, we do not find any substantial error in the finding of the Family Court regarding the marriage of Durga Charan with Shantilata. Marriage with Kanaklata appears to have been admitted. Even the witnesses of Shantilata have stated that Durga Charan married Kanaklata subsequently. Three children-two daughters and a son, have been born out of the said marriage between Durga Charan and Kanaklata. Thus, we uphold the finding that Shantilata married Durga Charan before Kanaklata and that he married Kanaklata thereafter and was living with her.

Section 16 of the Hindu Marriage Act has laid down :

"16. Legitimacy of children of void and voidable marriage.: (1) Notwithstanding that a marriage is null and void u/s 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted