SC Dismisses Centre’s Appeal Against Treating Children Born Out Of Void Marriages As Legitimate

On September 18, a Supreme Court bench of Justices Adarsh Kumar Goel and Uday Umesh Lalit, dismissed the Centre’s appeal against a Division Bench judgment of the Madras High Court, which had validly held that children born out of void marriages are legitimate.

The Centre had first appealed against the judgment of the Central Administrative Tribunal before the Division Bench, and having lost in both, pursued its appeal in the Supreme Court, displaying complete non-application of mind, adding one more instance to the category of unnecessary litigation, which ought to have been avoided, to save precious resources.

The matter relates to the appointment on compassionate grounds in Southern Railway, of  a deceased employee’s son, born to his second wife, as he did not have any issue from his first wife.   The Southern Railway rejected the claim for appointment on the ground that children born to second wife were not recognised and second wife was not entitled to any benefits, as per the instructions of the Railway Board.   According to the Railway Board’s Circulated, dated 2.1.1992, appointment on compassionate ground, cannot be granted to the children born to second wife.

The Madras Bench of the CAT rejected the Railway’s contention on the basis of the judgment rendered by the Division Bench of the Kolkata High Court in the case of Smt.Namita Goldar and another v Union of India and others.

The Supreme Court too, in the case of Rameshwari Devi v State of Bihar, [2000(2) SCC 431) had held that the second marriage during the subsistence of first marriage may be illegal, but the children born out of such second marriage are legitimate and are also entitled to the estate of the father.   It is because under Section 16 of the Hindu Marriage Act, children of a void marriage are legitimate.

The CAT, therefore, held that no distinction can be made amongst the children of the first and second wife of a deceased employee.  In the present case, the first wife was issueless, and died shortly after the death of the employee concerned.

The CAT thus quashed the 1992 circular, issued by the Railway Board, to the extent that it prevented the children of the second wife from being considerd for appointments on compassionate ground.

The Madras High Court’s Division Bench, in view of the Kolkata High Court and Supreme Court’s decisions, held that the Centre’s stand against appointment of children born out of second marriage on compassionate ground, could not be countenanced in law.

The Madras High Court’s judgment was given by bench of Justices K.K.Sasidharan and V.Parthiban on February 28, 2017.