ORDER
1. The substantial question of law that arises in the second appeal is with regard to the application of Section 16 of the Hindu Marriage Act, 1955 to the appellants 2 to 5 herein and the construction of documents for deciding the paternity of these appellants. The appellants' case is that they are the legal heirs of one Natarajan. This Natarajan was originally married to the 1st respondent herein. The 2nd respondent is their son. The 3rd respondent is the mother of Natarajan. The relationship between the said Natarajan and the 1st respondent was not good and she was living separately and even after Natarajan obtained a decree for restitution of conjugal rights, there was no reunion between the two. Subsequently, the 1st appellant claims to have married the said Natarajan in 1976 and the appellants 2 to 5 were born to them. Natarajan was working in Cholan Roadways Corporation when he died on24.02.1993. Therefore, the suit was filed for a declaration that the appellants are the legal heirs of the said Natarajan along with respondents 1 to 3, entitled to the amounts due from Cholan Roadways Corporation and consequential injunction restraining the respondent 4 from paying this amount to respondents 1 to 3. The trial Court dismissed the suit as regards the claim of the 1st appellant herein, but declared that the appellants 2 to 5 are the heirs of the said Natarajan. Against this, the respondents 1 and 2 filed an appeal and the appeal was allowed. Aggrieved by this, the present second appeal has been filed.
2. Mr. Dhanapalan, learned counsel for the appellants argued that the evidence on record spoke of the continuous cohabitation between Natarajan and the 1st appellant and therefore, the court below ought to have held that the appellants 2 to 5 were children born out of the union of Natarajan and the 1st appellant. He submitted that there is the evidence of P.W.2 to the effect that Natarajan and the 1st appellant were married and even assuming without admitting that their marriage was not valid, the children would be entitled to the estate of their father. He referred to the various exhibits which are exhibits P1 to P10 which are the free family pass, the form filed by the deceased Natarajan in the office of the Transport Corporation, the application form for admitting appellants 2 to 5 in school etc. All these would show that all along, as far as the appellants 2 to 5 were concerned, there are records to show that the deceased Natarajan called himself their father and in the absence of any evidence to the contrary, their rights should not be denied to them. He referred to Margabandhu v. Kothandarama Mandhiri, 1983 (2) M.L.J. 445, Rameshwari Devi v. State of Bihar and others, and S.P.S.Balasubramanyam v. Suruttayan, to support his case that the children born even of a void marriage are deemed to be legitimate. In particular, he pointed out to the following paragraph in the trial court judgment which would show that the respondents had admitted that appellants 2 to 5 are the heirs of Natarajan.
Therefore, in the face of admission by the parties themselves, it was not open to the appellate court to reverse the trial court's decree.
3. Mr. Sankaravadivel, learned counsel for the respondents, on the other hand pointedly denied that there was any such admission by the respondents regarding the paternity of appellants 2 to 5. In particular, he submitted that itwas their case in the written statement that the 1st appellant had a liaison with one Veeraghavan and it was while she was pregnant with his child, that she came in touch with Natarajan. Therefore, according to the learned counsel, the 2nd appellant was definitely not the son of Natarajan and therefore, not entitled to such a declaration. As regards the other appellants also, he would submit that there is no satisfactory proof that they were born to the 1st appellant and deceased Natarajan.
4. It is necessary for the purpose of deciding this appeal to extract the following grounds raised by the respondents herein in the appeal filed against the trial court's decree:
Ground No.4: The lower court has failed to note that the 2nd plaintiff was born to the 1st husband of the 1st plaintiff and the lower court ought not considered the 2nd plaintiff as legal heir of late Natarajan.
Ground No.5: The lower court has failed to go through the averments made by the appellants/defendants 2 and 3 in their written statement. The lower court ought not to have considered the plaintiffs 1 and 2 are the legal heirs of late Natarajan.
Ground No.8: The lower court has failed to consider that the 1st plaintiff was living with her 1st husband at Kannara Street, Mayiladuthurai and given birth of male child the 2nd plaintiff in the above suit.
Ground No.11: The lower court has failed to appreciate with regard to the paternity of the 2nd plaintiff.
Therefore, even the respondents herein in the first appeal had only 'challenged the rights of the appellants 1 and 2 to a declaration that they are the legal heirs of Natarajan. In those circumstances, it was most certainly not open to the Appellate Judge to have allowed the appeal in entirety. He has failed to see that even the respondents 1 and 2 had not challenged the legitimacy of appellants 3 to 5. Therefore, the judgment of the lower court will have to be set aside insofar as the appellants 3 to 5 are concerned.
5. As regards the 1st appellant, it is not in dispute that deceased Natarajan was married to the 1st respondent herein. It is during the subsistence of this marriage that the 1st appellant claims to have married the said Natarajan. Any marriage under Section 11 of the Hindu Marriage Act which is solemnised after the commencement of the Act is null and void if it contravenes clauses 1, 4 and 5 of Section 5 of the said Act. Clause 1 makes it a condition for a valid marriage that neither party shall have a spouse living at that time of the marriage. Therefore, the marriage of the 1st appellant is clearly void and the trial court rightly held that she is not entitled to a declaration that she is the heir of the said Natarajan. As regards the dismissal of 1st appellant's claim, it shall stand confirmed.
6. Now, we come to the 2nd appellant. The trial court, as extracted above, gave a finding that it was not in dispute that the children were the heirs of the deceased Natarajan. This was denied by the learned counsel for the respondents. In those circumstances, I thought, it was necessary to look at the records to see if there was any such admission. The evidence regarding the 1stappellant's association with Veeraraghavan is very unsatisfactory. In cross-examination, D.W.2, the 1st respondent says that her mother-in-law and brother-in-law told her that the 1st appellant lived with Veeraraghavan. Apart from this, there is no other evidence. However, she admits in her evidence that in Cholan Transport Corporation, the employees should give a family photograph consisting of the employees' heirs and that, only if such details and photographs are given, they would give family pass and she also admits that she knew that such a photograph was taken by her husband with the 1st appellant. This photograph has been marked as Ex.A1. The trial court considers Ex.A3 which is the application form for the 2nd appellant. This is torn, therefore, the lower appellate court comes to the conclusion that in Ex.A3, Natarajan's name is not shown as father, but only as guardian. A perusal of these various exhibits show that the construction placed by the lower appellate court on this Ex.A3 is wrong. Ex.A2 is the form given by Natarajan to Cholan Transport Corporation, in that, he has clearly referred to the 2nd appellant as his son and the appellants 3 to 5 as his daughters. In Ex.A3, as against column 6 with reference to parent's name, occupation and address, Natarajan's name is given and as against column 7 which refers to guardian's name, there is a ditto. No doubt, the form is torn and it appears as if Natarajan's signature is above the words 'signature of guardian'. Ex.A4, which is the register of admission shows at serial No.426, Raguraman and at column No.4 which is 'the name of parent', the name of Natarajan is given and again under 'name of guardian', his name is given. Now, we look at Ex.A5 which is the application for admission for the 3rd appellant. In this form, against column No.6, Natarajan's name is given which is the name of the father and against column No.7, which is the name of the guardian, Natarajan's name is again shown and where, signature of Natarajan is seen, the word guardian is struck off and just the word 'father's signature' is shown. In Ex.A6 which is the register of admission with regard to the 3rd appellant, similar to the register of admission of 2nd appellant, in this also, against column 4 'name of parents' and column 5 'name of guardian', Natarajan's name is seen. Ex.A7 is the application form for the 4th appellant. In this against column No.6, Natarajan's name is seen which is the name of the parent and against column No.7, which is the name of the guardian, ditto mark is affixed same as in the application form Ex.A3 which relates to the 2nd appellant. Again in this application, the word 'guardian' is not struck off as in the case of 2nd appellant. Natarajan's name is seen above 'father/guardian signature'. Ex.A8 is the register of admission with regard to the 4th appellant and in this, similar to the register of admission for appellants 2 and 3, both against 'name of parent' and 'name of guardian', Natarajan's name is shown. Ex.A9 is the application form with reference to the 5th appellant. In this, the father's name is shown as Natarajan at column No.6 and column No.7 which shows a dash and where Natarajan has signed, as in the case of the 3rd appellant, the word 'guardian' is scored off. As regards Ex.A10, which is the register of admission with reference to the 5th appellant, it is similar to the other documents which are register of admission with regard to the appellants 2 to 4 and it shows the name of Natarajan against the column 'name of parent' as well as 'name of guardian'. Therefore, the mere fact that in Ex.A3, the dittomark is put as against the column for guardian and the fact that the words 'guardian signature' is not scored off is really not conclusive of the fact that this would show that the 2nd appellant Raguraman is not born to Natarajan. All the documents as well as the materials on record show that Natarajan had been living with the 1st appellant from 1976 and had raised the appellants 2 to 5 as his own children. There is no reason for us to conclude otherwise. The appellate court had committed an error in the first place by not adverting its mind to the fact that the paternity of appellants 3 to 5 was not disputed by the respondents 2 and 3 themselves. Further, the appellate court had dismissed the suit merely on the ground that the marriage between Natarajan and the 1st appellant was not proved. The lower appellate court had totally failed to see that oral and documentary evidence showed that Natarajan and the 1st appellant had lived together and there is nothing to show that the children were not born to Natarajan. The approach of the court below has been on misconstruction of the evidence and materials on record. The lower appellate court has also not considered that notwithstanding the fact that the marriage between the 1st appellant and Natarajan is void, the children would be entitled to a share in the father's property.
7. Section 16 of the Hindu Marriage Act clearly lays down that notwithstanding that a marriage is null and void under Section 11 and where a decree of nullity has been granted in respect of a voidable marriage, children who are born, who would otherwise have been legitimate if the marriage had been valid, shall be deemed to be their legitimate children. What follows there from is that such children will be entitled to inherit their father's property. In the decision reported in S.P.S. Balasubramanyam v. Suruttayan, the Supreme Court held that the circumstances of evidence in that case did not destroy the presumption, that the parties therein lived as man and wife under the same roof. In this case also, there is undeniable evidence that Natarajan and the 1st appellant had lived as man and wife under the same roof. Therefore, the children born to them are not illegitimate and the provisions of Section 16 of the Hindu Marriage Act will be applicable to them.
8. In Rameshwari Devi v. State of Bihar & Others, the Supreme Court held that in the circumstances, the cohabitation for a long time between the deceased employee and the 2nd spouse gave rise to presumption of wedlock and therefore, the minor children of second marriage were entitled to family pension, but not to second widow. In that case also, both the wives were living. The first wife had one child and the second wife had three children as in the instant case. The Supreme Court held that the children of the second wife were entitled to be deemed legitimate, as per section 16 of the Act. This is also applicable to this case.
9. Therefore, from the discussions above, I find that the case of the appellants 2 to 5 that they are the children of the deceased Natarajan has been established beyond reasonable doubt and therefore, they are deemed to be the legitimate children of Natarajan.
10. The facts of this case underscore the lacuna in the Hindu Marriage Act which has failed to make registration of Hindu Marriages compulsory.Section 8 has made the registration optional and Section 8(5) specifically provides that the validity of any Hindu Marriage shall not be affected by the failure to register. At the time of enactment of Hindu Marriage Act, there was an opportunity for the Legislature to provide for compulsory registration, but it failed to do so. The Act does not lay down the procedure for solemnising marriages, nor has made registration of marriages compulsory. To this confusion, the movies and visual media have done their part in creating an impression amongst women that exchanging garlands or tying of 'Thaali' constitute a valid marriage. This confusion, coupled with non-registration of marriages has landed many women like the 1st appellant herein in a relationship which while extracting from her, all the duties of a wife, leaves her with neither the right under law, nor the recognition in society. In addition, the Hindu male is able to contract a second marriage without any fear. In a divorce proceeding or in a proceeding under the Bigamy Prevention Act, the Hindu male can admit or deny the first or the second marriage depending on his whim and fancy. This puts the woman who is denied the status, in a vulnerable position. If registration were compulsory, even assuming that inspite of this, the Hindu male contracts a second marriage and registers it, atleast the second wife will have as proof, the document to show that the marriage was registered between her and the man. Therefore, prosecution for bigamy will be made easy. What is more, the children born out of this union will not have to go to courts and seek declaration of their paternity. The National Commission for Women has repeatedly urged that registration of marriages ought to be made compulsory, not only so that such bigamous marriages can be avoided and the denial of status for such women and children can be avoided, but also, child marriages will also cease. But, inspite of several representations, this injustice has not been rectified. One hopes that the Legislature will wake up to its duty and see that under the Hindu Marriage Act, registration is made compulsory.
11. The responses to Questions on India's First Report on CEDAW at the 22nd session of CEDAW is relevant:
'Que: What action has been taken to remove the reservation India has expressed on Article 16(2) of the convention and steps taken to make registration of marriage compulsory?
Ans: In view of several impediments like low levels of literacy, cultural pluralism and personal laws which govern marriages, it may not be appropriate to undertake legislation for compulsory registration of marriages. However, provision for registration of marriages exists in the Indian Christian Marriage Act, 1972, the Parsi Marriage and Divorce Act, 1952, Special Marriage Act, 1954 and section 8 of the Hindu Marriage Act, 1955, which govern a large percentage of the population in the country. The Central Government has been allowing the States to legislate for compulsory registration of marriages as the States to legislate for compulsory registration of marriages as the State in a better position to know the social structure and local conditions prevailing therein. The following enactments of the States Governments provide for uniform compulsory registration of marriages:
* The Bombay Registration of Marriages Act, 1953 as in force in the States of Maharashtra and Gujarat.
* The Karnataka Marriages Act, 1976 in force since 1983.
* the Himachal Pradesh Registration of Marriage Act, in force since 1997.
12. After considering the responses of the State's parties, the Committee has expressed its concern thus:
'The Committee is concerned that India has not yet established a comprehensive and compulsory system of registration of births and marriages. The Committee notes that inability to prove those important events by documentation prevents effective implementation of laws that protect women and girls from sexual exploitation and trafficking, child labour and forced or early marriage. The Committee is also concerned that failure to register marriages may also prejudice the inheritance rights of women.'
13. Steps can be taken to spread the importance of registration of marriages. Panchayats can be empowered to register marriages, certificates issued by temples and Kalyanamandapams where marriage takes place can be considered by the registering authorities to issue certificates of registration. These are just suggestions, if there is legislative will, modalities of implementation can be easily worked out.
14. These observations made in the aforesaid paragraphs are necessary in view of the injustice that is caused to women because of non-registration of marriages. I have already referred to how because of non-registration of marriage, woman, who has given herself physically, emotionally and otherwise, gains nothing but stands to lose everything if the marriage is denied by the man. The other compelling factor is the trauma that a child may face going through his formative years with his paternity in doubt. This assault on a child's sensibilities can be easily avoided if there is a certificate of registration of marriage between his mother and father which though may not validate the marriage if otherwise void, will atleast bear testimony to the identity of his biological parents. I hope, the way shown by the States of Maharashtra, Karnataka and Himachal Pradesh will be followed by all the other States in India.
15. The appeal is therefore allowed. The judgment of the court below is set aside insofar as the appellants 2 to 5 are concerned and they are entitled to a declaration that they along with the respondents 1 to 3 are heirs of the deceased Natarajan. Appellants 2 to 5 and the respondent 1 to 3 will all be entitled to a share in the terminal benefits of the deceased Natarajan. No costs. CMPs.Nos.13904 and 13905 of 1998 and 2879 of 2001 are closed.
16. Mr. Dhanapalan, learned counsel for the appellants made a request that in view of the fact, the 1st respondent is retired and the 2nd respondent is will established and a Doctor, the compassionate appointment should be given to the 2nd appellant herein. Such directions cannot be issued in this second appeal. But, it is open to the appellant to make a representation to the authorities who shall deal with the same in accordance with their rules.