Children born out of a marriage that is void have all rights and authorities similar to children born out of valid marriages. The law cannot make such a discrimination since there is no fault/role of the child in his/her birth. However, the wife from the second marriage which is void is not awarded with any rights and authorities and is illegitimate. This was decreed by the two-judge bench comprising of The Hon’ble Mrs. Justice B. V. Nagarathna And The Hon’ble Mr. Justice Hanchate Sanjeev Kumar in the case of K. Santhosha Vs. The Karnataka Power Transmission Corporation Limited and Ors. [WRIT APPEAL No.2495/2019 (S – RES)] before the Hon’ble High Court of Karnataka at Bengaluru.
The brief facts of the case are, the appellant herein is the son of deceased Kabbalaiah, who was working as Lineman Grade-II. He died in harness on 10.06.2014. During his life time, he was married for the second time during the subsistence of his first marriage. Out of the second marriage, the petitioner was born. On the death of his father, petitioner made an application seeking appointment on compassionate basis under the Regulations titled Karnataka Electricity Board Employees’ Recruitment (Appointment on Compassionate Grounds) Regulations, 1997. The respondents rejected the claim of the petitioner on the ground that he was the son of the second wife of the deceased employee Kabbalaiah and his father had married his mother during the subsistence of his first marriage. Therefore, he was not entitled to appointment on compassionate basis. In that context, reliance was placed on the Circular dated 23.09.2011 issued by respondent No.1 i.e., the Karnataka Power Transmission Corporation Limited herein in Clause 2, dealing with the eligibility for appointment on compassionate basis, it was stated that neither the second wife nor her children are eligible for compassionate grounds appointment, if the marriage had taken place during the subsistence of the first marriage. Aggrieved by this, the appellant had filed a writ petition which was dismissed. Thus, he has taken the matter up before the Hon’ble High Court of Karnataka in the form of the present appeal.
The counsel for the appellant submitted that the appellant herein, as a dependent son of the deceased Board employee – Kabbalaiah, who was his father, was entitled to be appointed on compassionate grounds. It may be that he is the son of second wife of Kabbalaiah, but the said fact cannot be a ground to reject the application made by the appellant for appointment on compassionate basis. It is also submitted that according to regulation 3(2) (a) “son” need to be born out of a valid wedlock but any male child born to a couple is sufficient to be qualified as son. Learned counsel for the appellant further contended that the Circular dated 23.09.2011 stating that, under no circumstances, the second wife or her children are eligible for compassionate grounds appointment, if the marriage is taken place during the subsistence of first marriage, is contrary to the Regulations. Per contra, the counsel for the respondent submitted that Regulation 2(1)(b) categorically defines ‘family’ in relation to a deceased employee to mean only his or her legally wedded spouse and their sons whether married or unmarried and unmarried daughters who were jointly living with him. Therefore, the son not born out of a valid marital relationship, is not entitled to be considered under the Regulations. It was also submitted that asper the service rules, a permission has to be taken before marrying during the subsistence of a first marriage. Furthermore, he submitted that appointment on compassionate basis is an exception to regular recruitment. That such an exception can be made only by Regulations. He further submitted that the learned Single Judge has correctly appreciated the position of law and has dismissed the writ petition as well as the review petition.
The learned bench heard the contentions of both the parties and analyzed the current case in accordance with section 16(3) of the Hindu Marriage Act, 1955 which reads, “Nothing contained in sub-section (1) of 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”.
The court also relied on the judgement in N. Anusuyamma Vs. BESCOM [W.A.No.379/2006 dated 30.11.2011] wherein, it was held that, “It may be that, “not legally wedded spouse” may be ineligible because of the matrimonial relationship not being recognized by law but nonetheless the children born out of the bigamous marriages cannot be discriminated by Regulations, which has statutory force. The respondents are State Government Organizations within the meaning of Article 12 of the Indian Constitution. Therefore, the Regulations which discriminate the children not born to legally wedded spouse is unconstitutional and violative of Articles 14 and 16 of the Indian Constitution. Whatever the benefit the children born out to the “legally wedded spouse” should also be extended to daughters or sons born to “not legally wedded spouse”.
The court also relied on the judgement in Union of India vs. V.R.Tripathi [(2019) 14 SCC 646], wherein it was held that, “We are here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination.”
Applying the rationale laid down in the above-mentioned laws, the learned court allowed the appeal and decreed, “no child is born in this world without a father and a mother. A child has no role to play in his/her birth. Hence, law should recognize the fact that there may be illegitimate parents, but no illegitimate children. Therefore, it is for the Parliament to bring about uniformity in law vis-à-vis legitimacy of children. Thus, it is for the Parliament to determine in what way protection could be extended to children born outside a valid marriage.”