Full Judgment Text
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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
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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 bastardizing 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.
The appeal, therefore, fails and shall stand dismissed. No costs.
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