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HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
M. Seetharama Murti and Ms. J. Uma Devi, JJ.
Nagapatla Venkata Chalam – Appellant
versus
Nagapatla Saroja and Ors. – Respondents
F.C.A. No.433 of 2017
Decided on 6.6.2019
Hindu Marriage Act, 1955 – Sections 11, 12 and 16 – Rights of Children born from void marriage – Child born from a marriage which is null and void is a legitimate child – Object of Section 16 of Hindu Marriage Act, 1955, is to protect legitimacy of children born of void or voidable marriages and that benefit given under amended Section 16 is available only in cases where there is a marriage and when such marriage is void or voidable in view of provisions of Act – Nonetheless, if there is no marriage, may be void or voidable, then, this benefit of deemed ‘legitimacy’ will not be available to children who are begotten out of any physical relationship of a man and woman – Section 16 of Hindu Marriage Act does not confer benefit of legitimacy on a child born out of any physical relationship between a man and a woman who are not married – For the benefit of legitimacy to inure to such illegitimate child, such a child must have been born, after a marriage between his father and mother, whether void or voidable.
Held: In view of the legal position enunciated in the decision of the Supreme Court supra and the provision of Section 16 (1) of the Hindu Marriage Act, it is clear that a child born form a marriage which is null and void is a legitimate child’. Therefore the contention of the Railway Administration that such an illegitimate child born from a marriage, which is null and void, is not entitled to appointment on compassionate ground is untenable. But the question here is as to whether the present petitioner is such a child born from a marriage, which is null and void, and is, therefore, a legitimate child as per the provision of the afore-stated Section of law.
What is to be noted from the legal position enunciated is that a child if born out of a marriage, which is null and void, under Section 11, is legitimate under Section 16 of the Hindu Marriage Act. The second half of the section says that “whether or not a decree of nullity is granted in respect of that matter under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act”. On a plain reading of the provision of Section 16, as amended in the year 1976, makes it apparent that the object of Section 16 of the Hindu Marriage Act, 1955, is to protect legitimacy of the children born of void or voidable marriages and that the benefit given under the amended Section 16 is available only in cases where there is a marriage and when such marriage is void or voidable in view of the provisions of the Act. Nonetheless, if there is no marriage, may be void or voidable, then, this benefit of deemed ‘legitimacy’ will not be available to the children, who are begotten out of any physical relationship of a man and woman. Thus, Section 16 of the Hindu Marriage Act does not confer the benefit of legitimacy on a child born out of any physical relationship between a man and a woman, who are not married. Consequently, for the benefit of legitimacy to inure to such illegitimate child, such a child must have been born, after a marriage between his father and mother, whether void or voidable. In view of the facts and the legal position adverted to supra, we find that even the alternate contention of the petitioner that he is the illegitimate son of the deceased and his mother, Shaik Shajadi Begum, and hence, he is entitled to compassionate appointment does not come to his aid as from the facts borne out by the record it is noticeable that there is no marriage void or voidable between the deceased and the mother of the petitioner. (Paras 23 and 26)
Result: Appeal dismissed.
JUDGMENT
The unsuccessful petitioner filed this appeal under Section 19 of the Family Courts Act, 1984, assailing the order, dated 09.11.2012, of the learned Judge, Family Court-cum-V Additional District Judge, Tirupati of Chittoor District.
2. We have heard the submissions of Sri K.S. Gopalakrishna, learned counsel appearing for the appellant-petitioner and of the learned Standing Counsel for Railways appearing for the 3rd respondent. Though respondents 1 and 2 are served with notices, neither a counter affidavit is filed nor is a representation made on their behalf on an earlier date of hearing, that is, on 16.11.2017; and, on that day the delay in filing the appeal is condoned by allowing FCA.MP. No.176 of 2013 and fresh notices were ordered in the appeal. Proof of service is filed showing that the 1st respondent has not claimed the notice sent to her and that the notice sent to the 2nd respondent is delivered as per postal track report. They have not entered appearance.
3. We have perused the material record.
4. The parties in this appeal shall hereinafter be referred to as arraigned in the Original Petition.
5. To begin with, it is necessary to refer to the pleadings, this appeal being a first appeal.
6. The case of the petitioner is this: ‘He is the son of Nagapatla Venkatapathi (‘the deceased’, for brevity) and his wife Saroja, the 1st respondent. The deceased worked as Gateman in the 3rd respondent-South Central Railways and died, on 07.03.2007, in harness. The date of birth of the petitioner is 15.02.1982. He studied up to 8th class and later appeared for 10th class (SSC examination) privately. All educational and Government records reflect that he is the only son of the deceased and the 1st respondent, who are also having daughters. The deceased has shown the petitioner as his son in all his service records and in the records related to Railway pass. After the death of the deceased, there were disputes between the family members. Hence, Succession OP.271 of 2000 (SOP) was filed before the present Family Court. The said SOP was settled before the Lok Adalat Bench, Mandal Legal Services Committee, Tirupati and an Award, dated 17.07.2004, was passed in terms of the memorandum of compromise. As per the terms of the said Award, the petitioner is entitled for appointment in the 3rd respondent Railways on compassionate grounds as the respondents 1 and 2 herein stated no objection for the employment of the 5th petitioner therein, that is, the petitioner herein on compassionate grounds. They had also submitted applications to the 3rd respondent Railways. All the records including the award of the Adalat are produced before the said respondent along with several representations. The 3rd respondent Railways is raising un-necessary queries and frivolous objections, though their record evidences the fact that the petitioner is the son of the deceased railway employee. At the instance of the 3rd respondent Railways and for the reasons best known to them, the respondents 1 and 2 started acting adverse to the interests of the petitioner. The 3rd respondent Railways, without proper appreciation of facts, issued notice, dated 01.01.2007, refusing to consider the petitioner’s case for compassionate appointment. Hence, he filed the instant FCOP for declaring that he is the legitimate son of the deceased and is consequently entitled to appointment in the 3rd respondent Railways on compassionate grounds’.
7. The 1st respondent filed a counter. The same was adopted by the 2nd respondent. Their case is this:- ‘The material allegations including the allegation that the petitioner is the son of the deceased and the 1st respondent and that he was shown as the son of the deceased in the service records and in records related to Railway pass are all absolutely false. The 1st respondent is the legally wedded wife of the deceased. They were blessed with two daughters, N. Radhamani and the 2nd respondent. The said 1st daughter is living with her husband.
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