Jane Antony, Wife Of Antony vs V.M.Siyath, Vellooparambil on 25 September, 2008
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Kerala High Court
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1324 of 2004()
1. JANE ANTONY, WIFE OF ANTONY,
... Petitioner
2. ROSHEN ANTONY (MINOR AGED 3 YEARS)
3. LISA ANTONY (MINOR AGED 2 YEARS)
4. ALEYKUTTY ITTYAVIRAH, DO. DO.
5. ITTYAVIRAH, DO. DO.
Vs
1. V.M.SIYATH, VELLOOPARAMBIL,
... Respondent
2. K.K.MOHAMMED IBRAHIM,
3. THE ORIENTAL INSURANCE COMPANY LIMITED,
4. SOPHIA MARY ANTONY,
5. SONA NORU ANTONY,
For Petitioner :SRI.P.R.VENKETESH
For Respondent :SRI.K.G.ANIL BABU
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :25/09/2008
O R D E R
C.N. RAMACHANDRAN NAIR C.R &
HARUN-UL-RASHID, JJ.
---------------------------------------------------------
M.A.C.A.NO. 1324 OF 2004
--------------------------------------------------------- Dated
this the 25th day of September, 2008
JUDGMENT
Harun-Ul-Rashid, J.
Right of succession of illegitimate children born to Christian parents is
the bone of contention cropped up for consideration in this case. While
considering this, the following issues arise for consideration.
(i) Whether the requirement of a central legislation recognising the right
of illegitimate children of all classes irrespective of their religion to
inherit the property of their parents is the need of the hour?
(ii)Whether illegitimate children born to Christian father and mother are
entitled to inherit the property of their father under the Indian Succession
Act?
(iii) whether children born to parents living as husband and wife during
the subsistence of the father's first marriage are legitimate or illegitimate in
the eye of law.
2. The appeal is directed against the award passed by the Motor Accidents
Claims Tribunal, Pala in O.P.(MV) Nos.1073 of 1995 and 1270 of 1995. The case
of the appellants in brief is as follows: The deceased Dr.Antony was a 36 year
old doctor who died in a M.A.C.A. No. 1324 of 2004 -2-
motor accident on 3.5.1993 while studying for M.S Course in the Medical
College, Kottayam. The motor bike in which the deceased was travelling as
pillion rider along with his relative was knocked down by a tempo van driven by
the 1st respondent. The deceased sustained injuries and was admitted in the
Medical College Hospital, Kottayam where he later died. The first appellant,
who is also a Doctor by profession is the widow of the deceased, appellants 2
and 3 are her children born to the deceased and appellants 4 and 5 are the
parents of the deceased. In the claim petition filed by the appellants before
the Tribunal, respondents 4 and 5 who are the children of the deceased and one
Mrs. Mary Antony got impleaded as additional respondents. Even though RW1(
Mrs. Mary Antony) claimed to be married to the deceased and respondents 4 and 5
are the children born in that wedlock, the Tribunal held that since the first
marriage was subsisting there could not be another valid marriage by deceased
with RW1. However, respondents 4 and 5, the children born to the deceased
through RW1, were granted compensation along with the appellants herein. Out
of the total compensation awarded, Rs.50,000/- each was given to the parents of
the deceased who are appellants 4 and 5 herein and the balance was apportioned
among appellants 1 to 3 and M.A.C.A. No. 1324 of 2004 -3-
respondents 4 and 5 herein equally. It is against this award, appeal is filed
for enhancement of compensation and also for cancelling the award passed in
favour of respondents 4 and 5.
3. We have heard counsel appearing for the parties and have gone through
the award. According to respondents 4 and 5, Dr. O.I. Antony married their
mother as per an agreement dated 23.1.1990 and they were born in that wedlock.
The 4th respondent was born on 8.11.1990 and the 5th respondent was born on
16.9.1993 after the death of Dr.Antony. To discharge the burden of proving that
respondents 4 and 5 are the children of the deceased Antony, RWs.1 to 3 were
examined. RW.1 testified that on 28.5.1989 there was an advertisement in the
matrimonial column of the Indian Express inviting proposals from suitable bride
for the deceased to which her mother responded. Ext.B2 is the Indian Express
Newspaper and Ext.B2(a) is the relevant publication. According to RW.1, she was
a Lieutnant working in the Nursing Department of the Military during the
relevant period and during January, 1990, she met the deceased Antony at
Kottayam and they decided to marry and consequently registered a document at
the Sub Registry Office, Thrissur on 23.1.1990. Ext.B8 is the said marriage
document. In Ext.B8, it is stipulated that they have decided to live together
as husband and M.A.C.A. No. 1324 of 2004 -4-
wife by virtue of the said agreement and that the marriage will be solemnised
as per the religious formalities and customs. It is also testified by RW.1 that
herself and deceased Antony lived as husband and wife at her residence at Pala
for about 1 = months. She deposed that she became pregnant . Later she was
transferred to Binnaguari at West Bengal and that the deceased Antony visited
her thrice during that time. She also stated that both of them worked together
at Pushapagiri Hospital, Kerala. The first child was born at Cochin Naval Base
Hospital . RW.1 further stated that Baptism of the 4th respondent was performed
on 27.12.1990 and that Ext.B10 is the baptism certificate of the 4th respondent
issued from Uzhavoor Forane Church in which the name of the father of the child
is shown as Antony and that of the mother as Mary. Ext.B11 is the birth
certificate of the 4th respondent in which also her name and that of the
deceased are shown as the parents of the child. RW.1 further deposed that when
Dr. Antony died, she was pregnant and gave birth to the second child on
16.9.1993. RW.2 is the sister of RW.1. She also deposed that RW1's marriage was
performed on 23.1.1990 and she was residing with the deceased. She further
stated that the deceased had been paying maintenance to RW.1. RW.3 is the Home
Nurse who was deputed by the deceased Antony to nurse M.A.C.A. No. 1324 of 2004
-5-
RW.1 after the birth of the first child. She deposed that she went along with
deceased Antony to the residence of RW.1 and stayed there for about ten months.
According to RW.3, her remuneration was paid by deceased Antony. In the birth
certificate of the second child, the name of the father is shown as Antony and
that of the mother as Mary. Ext.B13 series are the photographs of deceased
Antony, RW.1 and their first child taken during the birthday celebration of the
first child. Ext.B14 series are the negatives of the photographs. The oral and
documentary evidence would prove that respondents 4 and 5 were born to RW.1
through deceased Antony.
4. One of the questions to be considered is regarding the entitlement of
compensation for respondents 4 and 5 on account of the death of the deceased
who is their father. Even though, respondents 4 and 5 are the children of RW.1
in her relationship with the deceased, the case of the 1st wife is that there
is no valid marriage between the deceased and RW1 and therefore the claim is
not maintainable. Counsel for respondents 4 and 5 contended that the deceased
contracted marriage with RW1 which is evidenced by Ext.B8 document and the fact
that the deceased lived with RW.1 and two children were born in that
relationship who are M.A.C.A. No. 1324 of 2004 -6-
respondents 4 and 5 stands proved. The evidence of RW1 and the documents
produced by her established the fact that the deceased and herself lived
together on the understanding that they will eventually get married after
getting divorce from the 1st appellant. The Tribunal, based on the evidence,
concluded that the case of RW.1 about her living with the deceased as his wife
for some time and that she got two children namely respondents 4 and 5 in that
relationship are true. On going through the documents and after hearing the
parties ,we do not find any ground to deviate from the findings of the Tribunal
that though there was no valid marriage between the deceased and RW1, they
lived together for quite some time and two children were born in that
relationship namely respondents 4 and 5 .
5. The next question to be considered is whether respondents 4 and 5
though children of the deceased, are entitled to get compensation as his
children. Counsel for the appellants relied on the decision of this Court in
Shyamalavalli Amma Vs. Kavalam Jisha reported in 2007 (3) K.L.T. 270 and in
Karthi Pankajakshy Vs.Lalitha Sujatha reported in 1990 (1) K.L.T. 248 and
contended that the maintainability of the claim has to be considered only with
reference to the Succession law and M.A.C.A. No. 1324 of 2004 -7-
respondents 4 and 5 being illegitimate children are not eligible to succeed to
the estate of deceased Dr. Antony nor to file the claim.
6. Counsel appearing for respondents 4 and 5 referred to the decisions of
this Court and the Supreme court which the Tribunal has relied on while passing
the award and contended that the word 'legal heirs' include illegitimate
children also. A division Bench of this Court in the decision in Unni Vs. Baby
John reported in 2008 (2) KLT 78 held that the claim petition under Section 166
of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") is
maintainable only when it is filed by the legal representatives. The Supreme
Court in the decision in Gujarat State Road Transport Corporation, Ahmadabad
Vs. Raman Bhai Prabhat Bhai and another reported in 1987 ACJ 561 held that a
wide meaning should be given to the word legal representative referred to in
Section 166 of the Act and in appropriate cases even foster children will be
covered by the term 'legal representative'. We have therefore examined the
entitlement of compensation for respondents 4 & 5 with reference to the
provisions of the Indian Succession Act 1925 , which is the law of succession
applicable to the appellants. Counsel for the appellants relied on Section 33
(a) of the Indian Succession Act and contended that the first appellant
M.A.C.A. No. 1324 of 2004 -8-
being the widow of the deceased is entitled to one- third of the compensation
and the remaining is to be apportioned among the lineal descendants who are the
children of the deceased born in the first appellant namely appellants 2 and 3
herein. However, counsel for respondents 4 and 5 referred to Sections 36 & 37
of the Indian Succession Act and contended that respondents 4 and 5 being the
children of the deceased are also entitled to succeed to the estate of the
deceased. We are of the view that Section 36 and Section 37 of the Indian
Succession Act should be read with Section 33 (a) and the combined effect is
that one-third of the estate of the deceased have to be first allocated to the
widow and the balance should be distributed among lineal descendants namely
the children. Section 36 provides that share of the estate of the deceased
among lineal descendants should be in accordance with Sections 37 to 40 of the
Indian Succession Act. Even though counsel for the appellants relied on
Sections 57 and 21 of the Indian Divorce Act 1869 and contended that only
legitimate children are entitled to succeed to the estate except in the
specific case of exception under Section 21 of the said Act, counsel for
respondents 4 and 5 referred to Section 8 of the Indian Succession Act and
contended that illegitimate children has a recognised M.A.C.A. No. 1324 of 2004
-9-
status under the Indian Succession Act. He also pointed out that there is
nothing in the Indian Succession Act barring illegitimate children from
succeeding to the estate of the deceased.
7. The word "legitimate" when used with reference to a child, means
lawfully begotten, born in a wedlock. In a number of decisions, legitimate is
termed as lawful, real or genuine.
8. In common law, the legal significance of the word "children" if used
in a Will is legal children and it will not include illegitimate children
unless the testator intends to include them. Under the marriage laws where a
marriage has been declared void abinitio, the child of such marriage is for all
purposes a legitimate child of the parents subject to conditions stated
therein.
9. Advanced Law Lexicon Vol.II defines legitimate child as one born in
lawful wedlock or born before the marriage of its parties, who afterwards marry
and which receives the recognition of its father and one of such children is
just as legitimate before the law as the other.
10. Illegitimacy is defined as being that which is contrary to law and it
is said that the term usually is applied to children born out of M.A.C.A. No.
1324 of 2004 -10-
lawful wedlock. Black's Law Dictionary 4th edition defines illegitimate child
as that which is contrary to law; it is usually applied to children born
outside lawful wedlock.
11. Whether the children born to RW.1 who lived with deceased Antony as
man and wife are legitimate or not is a significant question to be decided in
this case. In India the personal law of succession of Hindus, Christians and
Muslims does not recognise children born outside wedlock as legitimate
children. Among Christians and Hindus, a husband or wife cannot marry for a
second time during the subsistence of the first marriage. For Muslims, their
personal law permits polygamy. It simply means that the personal laws of the
religions in this country recognises only children begotten in wedlock as
legitimate children and they alone are entitled to succeed to the estate of
their deceased father. Children born out of wedlock are always considered as
illegitimate. It is relevant to refer to some of the provisions in the Divorce
Act, 1869 and the Hindu Marriage Act, 1955. Section 21 of the Divorce Act
reads as follows"
"Children of annulled marriage:- Where a marriage is annulled on the
ground that a former husband or wife was living, and it is adjudged that the
subsequent marriage was contracted in good faith and with full belief of the
parties that the former husband or wife was dead, or when a marriage is annulled
on the ground of M.A.C.A. No. 1324 of 2004 -11-
insanity, children begotten before the decree is made, shall be specified in the
decree, and shall be entitled to succeed, in the same manner as legitimate
children, to the estate of the parent who at the time of the marriage was
competent to contract." Section 18 read with Section 19 of the Divorce Act
confer jurisdiction on the court to declare a marriage null and void for the
reasons stated therein. Section 21 of the Divorce Act extracted above confer
status of legitimacy only to a limited class of children stated therein who are
begotten before the decree is made in an annulled marriage and shall be
entitled to succeed to the estate of the parent who at the time of marriage was
competent to contract, as legitimate children. Thus Section 21 does not confer
such status even on all children begotten in all marriages subsequently
declared null and void.
12. Section 12 of the Hindu Marriage Act enumerates the grounds to annul
a marriage by a decree of nullity. Section 16 of the Hindu Marriage Act deals
with legitimacy of children of void and voidable marriage.
13. Section 16 of the Act confers status on a limited class of children
as legitimate and they are entitled to succeed to the estate M.A.C.A. No. 1324
of 2004 -12-
of the deceased along with the children born in the wedlock. Under Hindu law an
illegitimate child has never been considered as Nullius Filius. In some cases
he has been considered to be a member of the family. More appropriately it can
be said that in Hindu law the illegitimate child and putative father and
natural mother have never been considered strangers to each other. From the
texts and the judicial pronouncements, one thing is manifestly clear that an
illegitimate son is recognized but with many riders and his rights are
discriminatory in nature. A son born out of wedlock is also accepted and not
totally thrown out but he had been given an inferior status and thus compassion
along with discrimination exists. The Supreme Court in Gaurav Jain vs. Union of
India (AIR 1997 SC 3021) while dealing with writ petition under Article 32 of
the Constitution of India pertaining to the plight of prostitutes/fallen women
and their progeny, spoke about the preamble of the Constitution and stated that
it is an integral part of the Constitution and that pledges to secure socio-
economic justice' to all its citizens with stated liberties, equality of status
and of opportunity, assuring fraternity and dignity of the individual in a
united and integrated Bharat and illegitimate children too are part of
citizenry. It seems imperative to refer to the provisions pertaining to non-
M.A.C.A. No. 1324 of 2004 -13-
discrimination while dealing with the children as stipulated in the
International Instruments.
Universal Declaration of Human Rights Article 25(2) " Motherhood and childhood
are entitled to special care and assistance. All children whether born in or
out of wedlock, shall enjoy the same social protection"
Article 1 " All human beings are born free and equal in dignity and rights.
They are endowed with reason and conscience and should act towards one another
in a spirit of brotherhood.
14. Muslim law prohibits inheritance to the property of the deceased by
illegitimate children. One of the reasons for permitting polygamy is that under
no circumstances the child born to them shall be illegitimate. The system of
monogamy prevails in Hindu and Christian religion and members of such
communities are expected to cohabit with their lawful spouses only. Polygamy is
permitted among Muslims to prevent birth of illegitimate children as one of its
pious objects. At present in our society a large number of illegal relationship
prevails and the number of illegitimate children are increasing in alarming
proportions in all communities. Several men and women live together without
marrying and the society is not attributing immorality to them. The only
exception is M.A.C.A. No. 1324 of 2004 -14-
the life of prostitutes(unchaste women) and children born to them, who cannot
claim father for them.
15. Section 125(1) Cr.P.C gives statutory recognition for right of
maintenance of children both legitimate and illegitimate from their father.
Since children have no role in their birth, illegitimate children are like any
other children born to their parents. It is unfortunate that there is no law in
this country to protect the interest of the illegitimate children. Their right
to succeed to the estate of their deceased father or mother is not recognised
by the administrators or Government, as the case may be by enacting
legislation. The legitimate status of the children which depend 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 has to suffer a permanent set back in life and
in the eyes of society by being treated as illegitimate. In other words, for
the act of the parent, the innocent children should not be made to suffer.
There are several cases in our country where man and woman live together as
husband and wife, children are begotten to them and are taken care of by them.
When the question arises as to whether such children can succeed to the estate
of their deceased parents, M.A.C.A. No. 1324 of 2004 -15-
there is no statute in this country enabling them to inherit the property of
their parents.
16. Protection of women from Domestic Violence Act 2005 defines
relationship as a relationship between two persons who live or have at any
point of time lived together in a shared household, when they are related by
consanguinity, marriage or through a relationship in the nature of marriage,
adoption or are family members living together as a joint family. The modern
enactment recognises and justifies to the limited extent the relationship in
the nature of marriage is a cohabitation even without a lawful marriage.
Married woman or a woman having relationship in the nature of marriage live and
share the household are entitled to the legal protection along with others as
per provisions envisaged in the above Act. Days are not far off where surrogate
mother would get protection.
17. An illegitimate child not only suffer from a social stigma in every
legal order but he is put to an unfortunate position as regards his rights of
inheritance and support are concerned. Its sufferings or deprivations are based
on the maxim, "Pater est quem nuptiae demonstrant."
18. European convention for the Protection of Human Rights M.A.C.A. No.
1324 of 2004 -16-
and Fundamental Freedoms, 1950-Article 14
" The enjoyment of rights and freedoms set forth in this convention shall
be secured without discrimination on any ground such as sex, colour, language,
religion, political or other opinion, national or social origin, association
with a national minority, property, birth or other status.
Declaration of the Rights of the Child-Principle I " The child shall enjoy all
the rights set forth in this Declaration. Every child without any exception
whatsoever shall be entitled to these rights, without distinction or
discrimination on account of race, colour, sex language, religion, political or
other opinion, national or social origin, property, birth or other status,
whether of himself or of his family"
International Covenant on Economic, Social and Cultural rights, 1966
Article 2(2) " states that the parties to the present Covenant undertake
to guarantee that the rights enunciated in the present Covenant will be
exercised without discrimination of any kind as to race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status" International Covenant on Civil and Political Rights.
Article 24(1) " Every child shall have, without any discrimination as to race,
colour, sex , language, religion, national or social origin, property, or
birth, the right to such measures of protection as required by his status as a
minor, on the part of his family, society M.A.C.A. No. 1324 of 2004 -17-
and the state"
Convention on the Rights of the Child
Article 2(2) " states that parties shall take all appropriate measures to
ensure that the child is protected against all forms of discrimination or
punishment on the basis of the status, activities, expressed opinions....."
19. Regarding adoption, prior to the Hindu Adoptions and Maintenance
Act, 1956 only legitimate sons could be adopted but an illegitimate son could
not be adopted. The Act now imposes no such restriction. Section 2(1)
Explanation speaks of"any child legitimate or illegitimate"
20. In Hindu Minority and Guardianship Act, 1956, the distinction is
maintained under Section 6(a) and (b). Various provisions are there in part III
and part IV of the Constitution to safeguard the interests of the 'child' The
word "child" is without any qualification attached to it.
21. In the United Kingdom and the United States as late as 1960's
illegitimacy carried on a strong social stigma. In social and sometimes legal
terms, the individual child so born was termed a "bastard."
22. The proportion of children born extramaritally (outside marriage)
varies widely among countries. In Europe, figures range M.A.C.A. No. 1324 of
2004 -18-
from 3% in Cyprus to 55% in Estonia. In Britain the rate is 42% (2004) The rate
in Ireland is 31.4% close to the European average of 31.6%.
23. In 1968 the Western Australian Government constituted the Law Reform
Commission to consider whether any alterations were desirable in the law of
succession in Western Australia in relation to illegitimate children. The
Committee recommends as follows:
(i)The relationship of an illegitimate child to its parents be deemed
legitimate for all purposes relating to intestate succession, so as not only to
give the illegitimate the right to succeed to the property of either parent and
vice versa, but also to establish the usual and corresponding rights of
succession between the child and all other lineal and collateral kindred.
(ii)The terms"children' , 'issue' and other words of relationship where
used in a will or other disposition, be deemed to include illegitimates and
persons claiming through illegitimates, unless a contrary intention appears.
24. In 1971, the Parliament enacted the Administration Act 1971 (WA), the
property Law Act Amendment Act 1971 (WA) and the Wills Act Amendment Act 1971
(WA) to implement the Committee's recommendations.
25. In Sheela Barse Vs. the Secretary Children Aid Society ( AIR 1987 SC
656), the Supreme Court said that children are the citizens of the future era:
On the proper bringing up of children and M.A.C.A. No. 1324 of 2004 -19-
giving them the proper training to turn out to be good citizens depends the
future of the country. The Children Act has made elaborate provisions to cover
the International charters relating to the rights of the children. The Supreme
Court referred to the Declaration of rights of the child 1959. International
Covenant on Civil and political rights , 1966 and said that India as a party to
these International charters having ratified the Declarations, it is an
obligation of the Government of India as also the State machinery to implement
the same.
26. More pragmatic approach with a touch of humanity has been depicted in
the Declaration of the workshop on Family Laws and Human Rights of Women,
Lahore on August 4 & 5 1995, in which representatives from Bangladesh, India
and Pakistan participated. In this Declaration, besides many other things, two
significant declarations were made:-
(i) All children born in wedlock or out of it shall enjoy equal status
and equal rights
(ii) The law must recognize both parents as the natural guardians of the child
27. Legitimacy is a status: it is the condition of belonging to a class
in society the members of which are regarded as having been M.A.C.A. No. 1324
of 2004 -20-
begotten in lawful matrimony by the men whom the law regards as their fathers..
The status of legitimacy gives the child certain rights both against the man
whom the law regards as his father and generally in society. An illegitimate
child in the eye of law is Nullius filuns. So, a relation means a relation
flowing from lawful wedlock. The rule under law of succession is that children
means legitimate children. So the statutory provisions and judicial decisions
are so clear that under Christian law in India a child does not include
illegitimate child and therefore such child is not entitled to a share in the
property of the deceased parents. The same is the position in Muslim and Hindu
communities subject to some riders in Hindu community which we have discussed
in this judgment. 28 Of late, courts in our country began to recognise man and
woman living under the same roof as husband and wife. The Apex Court in
Rameshwari Devi v. State of Bihar, reported in (2000)2 S.C.C. 431 considered
the question while dealing with the claim for family pension and its
entitlement to children of a second marriage of a deceased employee. A Hindu
contracting a second marriage during the subsistence of his first marriage has
committed misconduct under the Central Civil Service (Conduct) Rules read with
the Bihar Government Servants' Conduct Rules, 1976. The M.A.C.A. No. 1324 of
2004 -21-
Apex Court considered a situation that when two persons are living together for
long years as husband and wife, in such circumstances, even in the absence of
proof, a presumption of valid marriage between them would arise. The Apex Court
quoted with approval the decision in Badri Prasad v. Dy. Director of
Consolidation reported in (1978)3 S.C.C. 527 wherein it is stated that strong
presumption arises in favour of wedlock where the parties have lived together
for a long spell as husband and wife. There are various other judgments of the
Apex Court and various High Courts holding that where a man and woman have
lived for long years as husband and wife, then a presumption arises in law of
legality of marriages existing between the two, though the presumption is
rebuttable.
29. A remarkable change in the concept of succession by illegitimate
children to the retirement benefit of their father was pronounced by the Apex
Court in a latest decision in Vidhyadhari and Others v. Sukhrana Bai and Others
reported in 2008(2)S.C.C.
238. The Apex Court considered the basic issue regarding legitimacy of the
children born to a mother who contracted marriage with a person whose first
marriage was not dissolved. The Apex Court observed as follows:
M.A.C.A. No. 1324 of 2004 -22-
"............ The High Court should have realised that Vidyadhari was not
only a nominee but also was the mother of four children of Sheetaldeen during
his life time. In her application Vidhyadhari candidly pointed out the names of
the four children as the legal heirs of Sheetaldeen. No doubt that she herself
has claimed to be a legal heir which status she could not claim but besides that
she had the status of a nominee of Sheetaldeen. She continued to stay with
Sheetaldeen a his wife for long time and was a person of confidence for
Sheetaldeen who had nominated her for his Provident Fund, Life Cover Scheme,
Pension and amount of Life Insurance and amount of other dues. Under such
circumstances, she was always preferable even to the legally wedded wife like
Sukhrana Bai who had never stayed with Sheetaldeen."
30. The Supreme Court found that four children were born to the
deceased in Vidhyadhari in the prohibited relationship. Legitimacy was in fact
conferred on the four children for the reason that Sheetaldeen and Vidhyadhari
cohabited for a long period and Sheetaldeen treated Vidhyadhari as his wife.
The direct issue before the Court was about the status of children born to a
woman through a man who cohabited with the said woman and held that such
children are legitimate and are entitled to a share (allotment) of the service
benefits of their father along with the legally wedded wife.
31. The provisions of Section 125 of Cr.P.C, which is secular, in
nature is applicable to persons of all communities in M.A.C.A. No. 1324 of 2004
-23-
India, independent of their personal law. The right of the child legitimate or
illegitimate under the Code of Criminal Procedure is an individual right of the
child independent of the mother. While deciding the question of right of a
child for maintenance, paternity and not legitimacy has to be taken into
account. The provision aims at securing enforcement of duty imposed upon a
person by law . The courts in India recognised the presumption of valid
marriage from long co-habitation. Several cases have come to our notice where a
man and women living together as husband and wife without undergoing the
formalities of marriage and children born in such relationship are not treated
as legitimate under law.
32. No child is born in the world without a father and a mother . As said
earlier the child has no role to play in his/her birth. Many such illegitimate
children may not know who their progenitors are. The children born to unchaste
women belong to that class. The mother of such children also may not know who
is the father of the child. But the fact remains that all children both
legitimate and illegitimate are born to their father and mother. In the present
world by scientific means or tests, identity of the father of any child can be
established. The children born to a mother and M.A.C.A. No. 1324 of 2004 -24-
father who co-habited for a considerable period of time as husband and wife and
being regarded by their neighbours and friends as husband and wife and their
parents also acknowledged them as their children and so described in documents
like ration card, voters' list and School Register, there is a strong
presumption that the children are legitimate children The Parliament recognised
all the children both legitimate and illegitimate to be maintained by their
father under the Code of Criminal Procedure. If there is no discrimination
between legitimate and illegitimate children for maintenance why should these
children be also not allowed under law to succeed to the estate of their
parents. Such class of illegitimate children born to the father and mother who
lived as husband and wife are to be presumed to be legitimate and we hold that
such children shall be entitled to inherit the properties of their parents
along with the children born in valid marriage.
33. The conferment of social status of legitimacy on a group of
innocent children who are otherwise treated as illegitimate is the prime object
of Section 125 of the Code of Criminal Procedure. The status of legitimacy
gives the child certain rights both against the man whom the law regards as his
father and generally in society. The social status of children is determined by
the act of their M.A.C.A. No. 1324 of 2004 -25-
parents. If they have entered into a valid marriage , the children are
legitimate; but if the parents committed a folly, as a result of which the
child is conceived, such innocent child is labelled as illegitimate. Realising
this situation Parliament enacted Section 125 of the Cr.P.C which protected the
legitimacy of such innocent children. This was a bold, courageous and dynamic
legislation which was adopted by other advanced countries as stated supra.
34. If all the children both legitimate and illegitimate are entitled
to the maintenance, there is no reason or logic in denying them their right of
inheritance to succeed to the properties of their parents in cases of
intestacy. We suggest to the Central Government to enact a legislation to
confer right of succession on all illegitimate children irrespective of their
religion in tune with Section 125 of the Code of Criminal Procedure which is
for all purposes a secular legislation. This Court also suggest to enact
separate laws for members of different religions or a single statute like
Section 125 of the Code of Criminal Procedure enabling illegitimate children to
succeed to the estate of their deceased father and mother.
35. The fact and legal position of the case on hand also revolves more
or less in the same pivot. The first wife of deceased Dr.Antony ,might have
deserted him, for she never came back to M.A.C.A. No. 1324 of 2004 -26-
continue the marital relationship. The parents of respondents 4 & 5 lived
together as husband and wife till the death of the deceased.
36. At this juncture, we have noticed a piece of legislation in New
Zealand, namely Status of Children Act, 1969. Section 3 of the said Act
stipulates that relationship between every person and his father and mother is
to be determined irrespective of whether the father and mother are or have been
married to each other and all other relationships are to be determined
accordingly. In England also, social reforms were introduced to supplement or
improve upon the Matrimonial Causes Act by enacting Family Law Reform Act,
1969 and also the Family Law Reform Act, 1987 to confer limited right of
succession to the illegitimate children in the property of their parents or
allowing the parents to succeed to the property of their illegitimate children.
The object of Section 16 of the Hindu Marriage Act and Section 21 of the
Divorce Act was to protect children born of void or voidable marriages. A
limited section of children alone are protected under the said statutes. We are
of the strong view that all illegitimate children, though born out of wedlock,
are children born to a man and woman who cohabited for some time and are in
substance husband and wife for all purposes. Therefore, we have no hesitation
in holding that the two children born to deceased M.A.C.A. No. 1324 of 2004
-27-
Antony in RW.1, namely respondents 4 and 5, are legitimate children entitled to
succeed to the estate of deceased Dr.Antony.
37. The last question raised in this appeal is for enhancement of total
compensation. On this issue, the appellants and respondents 4 and 5 have joined
together and contended that the monthly income fixed at Rs.7,000/- is too low.
Counsel for the appellants also relied on Ext.A20 which contains the pay scale
of the Teaching Staff of Medical Colleges. We also agree with this contention
because admittedly the deceased was an eminent Doctor and has worked in several
private hospitals. The fact that he got admission to the M.S. Course in the
Medical College Hospital, Kottayam and was studying there at the time of
accident was proved by records. Had he not met with an untimely death, he
would have certainly completed his course successfully and could have easily
taken up a teaching assignment in any Medical college in Kerala . We agree with
the contention of the appellants and respondents 4 & 5 that the income fixed by
the Tribunal for awarding compensation for loss of dependency is very low. We
therefore re-fix the monthly income of the deceased at Rs. 12,000/- per month
and after deducting one-third towards personal expenses, the annual income for
granting compensation for loss M.A.C.A. No. 1324 of 2004 -28-
of dependency is re-fixed at Rs.96,000/- . Thus the compensation payable under
this head by applying the relevant multiplier, namely 16, is Rs, 15,36,000/- We
do not think enhancement under any other head is called for in this case. The
remaining issue is only about the apportionment of the additional compensation
awarded by us. We notice that the first appellant is a qualified medical
Doctor and obviously she would be earning reasonable income and the mother of
respondents 4 and 5 namely RW1 also is a person well employed in the Defence
Service and was stated to be earning Rs. 15,000/- per month when the
proceedings before the Tribunal was going on. Considering all these aspects and
the fact that the Tribunal has awarded compensation in favour of appellants 4
and 5 who are aged parents of the deceased, though, not falling under the
category of legal heirs under the Indian Succession Act we direct the Tribunal
to release a further sum of Rs. 50,000/- each to appellants 4 and 5 with
proportionate interest thereon. Counsel for the appellants pressed for
allocation of one-third of the compensation in favour of the first appellant
being the widow of the deceased in terms of Section 33 (a) read with Section 36
of the Indian Succession Act. This was opposed by counsel for respondents 4
and 5 on the ground that no such ground is raised in M.A.C.A. No. 1324 of 2004
-29-
this appeal even though the Indian Succession Act provides for allocation of
one-third to the widow of the deceased. We are not inclined to grant one-third
in favour of the first appellant for more than one reason. In the first place,
the distribution of the awarded amount among the claimants including the
parents who are also appellants herein was made by the Tribunal without
strictly following the provisions of the Indian Succession Act. Further, a
wider meaning to the word legal heir was given by the Supreme Court in the
decision cited above. Above all, the factual situation in this case is such
that the deceased had virtually abandoned the first appellant and entered into
a relationship with another lady namely RW.1 and two children were born in that
relationship. The second lady, namely RW.1, has not come forward with any claim
for compensation, probably because she is not a legal heir under the Indian
Succession law. We, therefore, order that out of the balance compensation left
after giving the amounts granted to the parents of the deceased, appellants 1
to 3 will take /5 and balance /5 will go to 3 2
respondents 4 and 5 which is the rates of apportionment of compensation among
the legal heirs, fixed by the Tribunal. Appellants 1 to 3 and respondents 4 and
5 will share their respective portions equally among them. Insurance Company is
directed to M.A.C.A. No. 1324 of 2004 -30-
deposit the additional compensation with interest at the rate of 7 = % per
annum from the date of application till date of deposit.The appeal stands
allowed to the above extent.
38. The Registry shall send a copy of this judgment to the Ministry of
Law and Justice, Government of India , Delhi, to the Chief Secretary to the
Government of Kerala, Thiruvananthapuram , to the Chairman, Law Commission of
India, New Delhi and Justice V.R.Krishna Iyer, Chairman, Law Reforms
Commission,(Kerala), Ernakulam.
sd/-
(C.N. RAMACHANDRAN NAIR,JUDGE
sd/-
(HARUN-UL-RASHID,JUDGE
es