Jinia Keotin
& Ors Vs. Kumar Sitaram Manjhi & Ors [2002] Insc 575 (20 December 2002)
Doraiswamy
Raju & Shivaraj V. Patil. 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
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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