The Supreme Court of India on September 18, 2017 dismissed the Centre’s Special leave petition ( Union of India & Ors vs M.Karumbayee Diary No(s). 27352/2017) against a judgment of the Madras High Court, which had held that children born out of void marriages are legitimate.
The present case 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. But the claim was rejected by the concerned railway board on the ground that the children born to second wife were not recognized and the second wife was not entitled to any benefits as per the instructions of the Railway Board. According to the Railway Board's Circular dated 02.01.1992 appointment on compassionate ground cannot be granted to the children born to second wife.
Central Administrative Tribunal Madras Bench in O.A.No.866 of 2013 dated 13.07.2015 allowed the Original Application on the basis of the Judgment rendered by the Division Bench of Kolkatta High Court in the case of Smt.Namita Goldar and another vs Union of India and others which followed the decision of the The Supreme Court in the case of Rameshwari Devi vs State of Bihar & Ors. reported in 2000(2) SCC 431 which specifically 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.
In view of the decision of the Apex Court in the case of Rameshwari Devi the children of the second wife cannot be treated as illegitimate and referring to Section 16 of the Hindu Marriage Act specifically held that children of a void marriage are legitimate.
In view of the law as settled by the Supreme Court no distinction can be made amongst the children of the first and second wife of a deceased employee. In the present case however first wife was issueless and died shortly after the death of the employee concerned.
In the aforesaid circumstances the aforesaid circular issued by the Railway Board on 2nd January 1992 stands quashed to the extent it prevents the children of the second wife from being considered for appointments on compassionate ground.
On a writ petition filed by the Centre against the order of the Learned Tribunal The Division Bench of the Madras High Court held that
" We have given our anxious consideration to the materials placed on record and the pleadings of the parties. We do not find any infirmity in the order passed by the learned Tribunal as the same was on the basis of the Division Bench judgment of the Kolkatta High Court which had followed the decision of the Hon'ble Supreme Court. We also do not have any quarrel with the proposition of law laid down by the Kolkatta High Court as the children born out of second marriage cannot be treated as illegitimate in the eye of law. In such view of the matter the Writ Petition is dismissed as devoid of merits and substance. No costs."
Against the judgement passed by the Division Bench of Madras High Court the Centre filed special leave petition in the Supreme Court which was held dismissed by the Supreme Court.
