Author- Soumi Kundu, Surendranath Law College

KEYWORDS

 Bigamy, Illegitimacy, Personal Laws, Succession Rights, Maintenance

CASE DETAILS

i)            Judgement Cause Title / Case Name	Jane Antony vs V.M.Siyath
ii)            Case Number	M.A.C.A.NO. 1324 OF 2004
iii)            Judgement Date	25th September, 2008
iv)            Court	Kerala High Court
v)            Quorum / Constitution of Bench	C.N.Ramachandran Nair, Harun-Ul-Rashid
vi)            Author / Name of Judges	Harun- UI- Rashid
vii)            Citation	AIR 2009 (NOC) 816 (KER.)
viii)            Legal Provisions Involved	The Indian Succession Act,1925- Section 8, 33a, 36, 37 The Indian Divorce Act, 1869- Section 18,19,21 The Hindu Marriage Act,1955- Section 12, 16 Criminal Procedure Code- Section 125(1)

INTRODUCTION AND BACKGROUND OF JUDGEMENT

In India marriage is considered an important social institution. Children born from these socially and legally accepted marriages are regarded as legitimate in terms of getting inheritance rights. But, sometimes children born out of marriages have no social and legal backing, and those children are stigmatized as illegitimate children neither they get any social status nor inheritance rights. In this case, the High Court deals with such an issue where children from a bigamous marriage were given inheritance rights. The verdict of this case is very important for dealing with such long-standing stigmatization. The Judges gave more importance to upholding socio-economic justice for children rather than focusing on the words per meaning of the statutes.

 FACTS OF THE CASE

Procedural Background of the Case

1. In this case, the deceased a 36-year-old Doctor died in a motor accident. He was studying for his MS at the medical college of Kottayam at that time. The bike in which the deceased was traveling as a pillion rider was knocked down by a tempo van of Respondent No. 1. A Motor Vehicle Tribunal first dealt with the case. The deceased was married twice; his first wife is regarded as Appellant No. 1, and the two children were regarded as Appellants 2 and 3. The deceased person’s parents are Appellants 4 and 5. Respondent No. 2 is also claiming to be the wife of the deceased Doctor and Respondent 4 and 5 are the children born from their wedlock. As per the Tribunal’s decision during the subsistence of the first marriage the deceased’s second marriage cannot be regarded as valid but the children who were regarded as Respondents 4 and 5 got a share of the compensation amount. A total amount of Fifty-thousand was divided between the Appellants and the Respondents 4 and 5.
2. The appeal is filed before the High Court for increasing the Compensation amount and canceling awards that were passed in favor of Respondents 4 and 5.[1]

 Factual Background of the Case

1. In this case, the factual matrix is that as per Respondents 4 and 5Dr. A I Antony married their mother and both of them were born from the lawful wedlock between their mother Mary Antony and Dr A I Antony. They have provided various documents to substantiate their claims. Respondent No. 1 who claimed to be the wife of the deceased deposed before the court that after seeing a marriage advertisement in the paper she responded and later met the deceased Dr. Antony at Kottayam while she was a lieutenant working in the nursing department of the Military. Consequently, their marriage was also solemnized by registration.
2. After their marriage, they decided to live together in Mary Antony’s house in Pala for one month. Later she got transferred to Binnaguari West Bengal where the deceased used to visit her. They both also worked at Pushapagiri hospital Kerala. After that the first child Respondent 4 born and his birth certificate mentions Dr Antony as his father and Respondent 1 as his mother.
3. Respondent 1 further deposed that while she was pregnant for the second time Dr. Antony died and later she gave birth to the second child. Two other persons namely Respondents 2 and 3 also testified before the court about the solemnization of the marriage between deceased Dr. Antony and Miss Mary and the children, Respondents 4 and 5 were born from that wedlock. Both the child’s birth certificate mentions Dr. Antony as their father.
4. The oral and documented evidence would prove that Respondent 4 and 5 were born to Respondent 1 through Dr Antony.[2]

LEGAL ISSUES RAISED 

1. “Whether there is a need for central legislation to recognize the right of illegitimate children to inherit their parent’s property irrespective of religion?
2. Whether the illegitimate children born from Christian parents entitled to inherit their father’s property under the Indian Succession Act?
3. Whether children born from the second marriage of a person during the subsistence of their father’s first marriage legitimate or illegitimate as per law?”[3]

PETITIONER / APPELLANT’S ARGUMENTS

1. The counsels for Petitioner / Appellant submitted that the claim for maintenance of Respondents 4 and 5 is not maintainable in the court and they have no right to get the estate of the deceased as under the Indian Succession laws only the legal heirs have the right to inherit property and in this case, as both the Respondents are illegitimate children of the deceased they have no right to get the deceased’s property.
2. The counsels mentioned that Section 57 and Section 21 of the Indian Divorce Act also support the claim that only legitimate children are entitled to succeed in the estate. However, there are certain exceptions mentioned under Article 21 for specific cases.
3. Regarding the distribution of the deceased’s property, the counsels proposed before the court that as per Section 33a of the Indian Succession Act, the widow is entitled to get 1/3^rd of the total compensation amount and the remaining must be apportioned among lineal descendants of the deceased doctor namely Appellants 2 and 3.[4]

RESPONDENT’S ARGUMENTS

1. The counsels for Respondent submitted that the tribunal has taken the right decision by giving Respondent 4 and 5 the compensation as the present High Court and the apex court in the previous judgments clarified that the term “Legal Heirs” also includes illegitimate children. The Supreme Court also said that under Section 166 of the Motor Vehicles Act, foster children also have the right to get compensation as they also come under the term “Legal Representatives”.
2. The counsels for the Respondent contended before the court that from Sections 36 and 37 of the Indian Succession Act, it can be inferred that Respondents 4 and 5 are entitled to get the maintenance as they both are children of the deceased doctor.
3. The counsel argued that Section 8 of the act as mentioned earlier also gives the illegitimate children a recognized status in the act. There is no provision in the Indian Succession Act, that prohibits illegitimate children from succeeding the deceased’s estate.[5]

RELATED LEGAL PROVISIONS

• The Indian Succession Act, 1925

“Section 8:- Domicile of origin of an illegitimate child—The domicile of origin of an illegitimate child is in the country in which, at the time of his birth, his mother was domiciled.”[6]

Section 33A:- Special provision where intestate has left a widow and no lineal descendants.—

When a person died intestate living as a widow but no lineal descendants, the wife shall be entitled to get the entire property in case the net value of the property does not exceed five thousand rupees. In case the property value exceeds five thousand the widow shall be entitled to charge from the whole property five thousand rupees with 4 percent interest per annum from the date of the deceased. After getting the said amount the widow shall be entitled to get any other share in addition to the said amount from the remaining estate value as per Section 33.

The net value of the property shall be decided by deducting the gross value of all debts and other expenses regarding funeral and administration charges and any kind of lawful liabilities which is due from the property.[7]

“Section 36:- Rules of distribution—The rules for the distribution of the intestate’s property (after deducting the widow’s share, if he has left a widow) amongst his lineal descendants shall be those contained in sections 37 to 40.”[8]

“Section 37:- Where intestate has left child or children only—Where the intestate has left surviving him a child or children, but no more remote lineal descendant through a deceased child, the property shall belong to his surviving child if there is only one, or shall be equally divided among all his surviving children.”[9]

• The Divorce Act, 1869

“Section 18:-Petition for decree of nullity—Any husband or wife may present a petition to the District Court praying that his or her marriage may be declared null and void.”[10]

“Section 19:- Grounds of decree—

Such decree may be made on any of the following grounds: —

(1) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit;

(2) that the parties are within the prohibited degree of consanguinity (whether natural or legal) or affinity;

(3) that either party was a lunatic or idiot at the time of the marriage;

(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.”[11]

“Section21:- 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 the full belief of the parties that the former husband or wife was dead, or when a marriage is annulled on the ground of 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.”[12]

• The Hindu Marriage Act,1955

Section 12:- Voidable marriages–

This sub-section mentions some grounds under a solemnization of marriage will become voidable and may be annulled by decree from the court:-

(a) [In case the marriage has not been accomplished due to impotency of the respondent or,][13]

(b)The marriage was violating conditions mentioned under Section 5(2). or,

(c) In case the marriage happened by taking consent through force either from the petitioner or from their guardians in case the petitioner was minor.

(d)If during the solemnization of the marriage, the respondent was pregnant by any other person than the petitioner.

• This sub-section maintains some conditions without which a petitioner will not be able to get a divorce under grounds of sub-section 1-
• Petitioner can not get a divorce under clause(c) of sub-section 1
• if the petition for nullity of marriage is presented for more than a period of one year after discovering that the fraud has been committed.
• If after knowing that the force was used the petitioner has agreed to live with the other party as husband and wife with full consent.

• Petitioner can not get a divorce under clause(d) of sub-section 1
• If the petitioner was unaware of the alleged facts within 1 year of the solemnization of marriage.
• In case the marriage has been solemnized before the commencement of this act, the proceedings have to be instituted within one year of this act coming into being and In case of solemnization of marriage after the commencement of this act, the proceedings have to be instituted within one year from the marriage date.

• If marital intercourse has not happened between the parties with the petitioner’s consent after the discovery of the alleged facts.[14]

[Section 16:- Legitimacy of children of void and voidable marriages.—

This section says that in case the marriage between two parties becomes null and void or becomes voidable, the children born out of such marriages before the decree of nullity is made by the courts will be regarded as legitimate children.

This section also states that children born from void or voidable marriages will only have the entitlement of inheriting properties from their parents and not from any other members.][15]

• The Criminal Procedure Code,1973

Section 125(1):- Order for maintenance of wives, children, and parents.—

This section says that if any person neglects his duty of maintenance towards his wife, his legitimate or illegitimate son (till they become major), and daughter( till she remains unmarried), parents of the person who are unable to maintain themselves, a first-class magistrate, after be having proof of such case, may order to make monthly allowances to those parties at a rate as per the magistrate’s discretion.[16]

JUDGEMENT

RATIO DECIDENDI

• The Hon’ble court in this case held that the personal laws prevail in India for specific religions do not treat children born outside the lawful wedlock as legitimate children. However, some sections of the Hindu Marriage Act regard the children from void and voidable marriages as legitimate children. But that only provides benefits to the persons born in the Hindu religion. The Muslim personal law as well as the Christian personal law does not recognise the children born from unlawful marriages as legitimate so those children do not have the right to maintenance and they also cannot succeed to the estate of their fathers.

To remove these discrepancies, the High Court suggests that Parliament enact legislation that will provide Succession rights to illegitimate children. Section 125 of CrPC ensures maintenance to legitimate children as well as illegitimate ones. The new legislation also needs to be secular so that as many children as possible can get the benefits irrespective of their legal status.

• The court specified that in the Indian Succession Act, the definition of “Children” only applies to legitimate children, and they are only eligible to succeed in the estate of their deceased father. No explicit provision in the said act gives illegitimate children the right to inheritance.

Though there are no specific legislations for ensuring children’s right to inheritance the court from humanitarian grounds says that a child has no control over who will be their parents and whether they are legally married or not so why they will be deprived of succeeding their parents property. In this present case also the deceased and Respondent 1 were cohabitated like husband and wife and the two children namely Respondents 4 and 5 born from that wedlock. So, despite their marriage having no legal status as per law the children have equal rights to protect their deceased father’s property like the legitimate ones.

• The Hon’ble court accepted that during the subsistence of the first marriage, the deceased Dr Antony married Respondent 1, due to the reason of bigamy the marriage is invalid and now the question is whether the child born out of the marriage will be legitimate or not.

As per the current Indian laws, the child will be illegitimate but as the parents of those children lived together as husband and wife, the other relatives and neighbours accept their marriage and also recognize the children, and the children’s important cards like Birth Certificate and other official documents mentions Dr Antony as their father both the children irrespective of their legal status will get maintenance from the deceased’s property as the father must maintain both legitimate and illegitimate children under Section 125(1) of CrPC.

The legitimacy status does not hinder maintenance rights, so there should not be any discrepancy regarding Succession rights. The Court ruled that Respondents 4 and 5 will be entitled to inherit the properties of their deceased father along with the legitimate children. [17]

The Court here maintains the apex court’s judgment in Vidyadhari’s case where a person has married twice, never resided with the first wife, and later married another woman with whom he lived more than two decades and they both have four children. The court in this case ruled that though the second marriage is invalid as per law, the children born from the marriage will be given the right to inheritance. And the first wife got a specific portion of the deceased’s property.[18]

CONCLUSION & COMMENTS

This case suggests that the interpretation of the laws changes with specific case circumstances. Law is not static it has to change as per the needs of the society. Rather than giving importance to the legal words Judges here gave importance to the socio-economic status of those children born outside of lawful wedlock. By upholding illegitimate children’s right to succeed in their parent’s property the court ensures their right to live with dignity in the society.

No doubt, the Judgment has left a positive imprint in society by ensuring inheritance rights to every child born from a father and mother irrespective of their legal status.

 ENDNOTES:

[1] Jane Antony vs V.M.Siyath on 25 September, 2008 AIR 2009 (NOC) 816 (KER.)

[2] Jane Antony vs V.M.Siyath on 25 September, 2008 AIR 2009 (NOC) 816 (KER.)

[3] Jane Antony vs V.M.Siyath on 25 September, 2008 AIR 2009 (NOC) 816 (KER.)

[4] Jane Antony vs V.M.Siyath on 25 September, 2008 AIR 2009 (NOC) 816 (KER.)

[5] Jane Antony vs V.M.Siyath on 25 September, 2008 AIR 2009 (NOC) 816 (KER.)

[6] The Indian Succession Act, 1925 (Act 39 of 1925), s. 8.

[7] The Indian Succession Act, 1925 (Act 39 of 1925), s. 33A.

[8] The Indian Succession Act, 1925 (Act 39 of 1925), s. 36.

[9] The Indian Succession Act, 1925 (Act 39 of 1925), s. 37.

[10] The Divorce Act, 1869 ( Act 4 of 1869), s.18.

[11] The Divorce Act, 1869 ( Act 4 of 1869), s.19.

[12] The Divorce Act, 1869 ( Act 4 of 1869), s.21.

[13] Subs. by Act 68 of 1976, sec. 6(a)(i), for clause (a) (w.e.f. 27-5-1976).

[14] The Hindu Marriage Act, 1955 (Act 25 of 1955), s.12

[15] Subs. by Act 68 of 1976, s. 11, for section16 (w.e.f. 27-5-1976).

The Hindu Marriage Act, 1955 (Act 25 of 1955), s.16

[16] THE CODE OF CRIMINAL PROCEDURE, 1973 (Act 2 of 1974), s 125(1)

[17]  Jane Antony vs V.M.Siyath on 25 September, 2008 AIR 2009 (NOC) 816 (KER.)