JINIA KEOTIN AND ORS.versusKUMAR SITARAM MANJHI AND ORS.

                  JINIA KEOTIN AND ORS.                                        A
                            v.
              KUMAR SITARAM MANJHI AND ORS.

                         DECEMBER 20, 2002

      [DORAISWAMY RAJU AND SHIVARAJ V. PATIL, JJ.)                             B


       Hindu Marriage Act, 1955-Section 16(3)-Right of illegitimate child to
inherit properly-Plea that right should not be limited only to property of
their parents, but also to coparcenary properly-Held, since the provisions C
limit right of such child only to the property of his parents, granting any
fiirther rights to such child would amount to doing violence to the provision-
/I would also amount to Court relegislating on the subject under the guise of
 interpretation.

       In a partition suit, children born out of unlawful wedlock were held    D
entitled to claim their due share in the property of their parents, by the
T~ial Court which was upheld by the First appellate Court and High
Court.

       In appeal to this Court appellants contended that once the children
born out of void and illegal marriage have been specifically safeguarded       E
under Section 16, as amended by the Central Act 68 of 1976, there is no
justification to deny them equal treatment on par with the children born
of wife in lawful wedlock by countenancing claims for inheritance even in
the ancestral coparcenary property; and that the provisions of Section
16(3) of the Act also should be construed keeping in view the totality of
circumstances and the object and purpose of the legislation in respect of      F
right to inherit ~operty also like the children born out of lawful wedlock.

     Dismissing the appeal, the Coµrt

      HELD: Though Section 16 of Hindu Marriage Act, 1955 was enacted          G
to legitimize children, who would otherwise suffer by becoming illegitimate,
at the same time it expressly provides in sub-section (3) by engrafting a
provision with a non obstante clause stipulating specifically that nothing
contained in sub-section (I) or sub-section (2) shall be construed as
conferring upon any child of a marriage, which is null and void or which
                                    689                                        H
    690                    SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R.
A is annulled by a decree 9f 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". In the light of such an express mandate
B   of the legislature itself, there is no room for according upon such children
    who but foi: Section 16 would have been branded as illegitimate any
    further rights than envisaged therein by resorting to any presumptive or
    inferential process of reasoning, having recourse to the mere object or
    purpose of enacting Section 16 of the Act but also would amount to court
    relegislating on the subject under the guise of interpretation, against even
C   the will expressed in the enactment itself. 1692-G-H; 693-A, B, q

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7247 of 1995.

         From the Judgment and Order dated 20.12.1991 of the Patna High
    Court in S.A. No. 315 of 1991.
D
          Lakshmi Raman Singh for the Appellant.

          H.L. Agrawal and K.K. Gupta (N.P.) for the Respondents.

          The Judgment of the Court was delivered by
E        D. RAJU, J. The plairitiff(lst respondent herein) filed the suit claiming
  for I/6th share in Schedules A to D properties and 1/3 share in Schedules E
  properties. From the indisputable facts on record, the ancestral properties
  have to be divided firstly between Sahadeo Manjhi, his brother Mahadeo
  Manjhi (defendants Nos. I & 2) and their mother Dukhani Keotin (defendant
F No. 7) each one getting I/3rd share. Out of the I/3rd share of Sahadeo
  Manjhi, the properties again will be equally divided in four parts each one
  of the sharers getting I/4th share. Defendants 8 to 11 are sa'id to be not
  entitled to any share on account of the fact that the marriage of the Ist
  defendant with the 8th defendant was void for the reason that his first wife,
  Smt. Kamli Devi, was alive and the first marriage still subsisting. The second
G marriag~-remarriage, of 1st defendant with the 8th defendant after the coming
  into force of the Hindu Marriage Act, 1955 cannot be valid. The learned 2nd
  Additional Su~ordinate Judge, Dumka passed a preliminary decree on
  27.9.1983 in Title Suit No. 40of1975 (3of1983) for the I/4th Share of the
  plaintiff in the suit properties out of the I/3rd, which has got to be allotted
                                                                                     •
H to the share of the Ist defendant. On appeal in Title Appeal No. 43 of 1983
        JINIA KEOTIN '"KUMAR SITA RAM MAN.IHI [DORAISWAMY RAJU, J.]      69 J

 before the learned llnd Ad.ditional District Judge, Dumka, the learned First   A
Appellate Judge by his Judgment dated 13.7.1990 also held that the 1st
defendant could have remarried the 8th defendant only after 1957 when the
judgment of acquittal came to be passed in the criminal case against him for
an offence under Section 498 IPC.

       In the light of the above, the plaintiff was held entitled to I/9th share B
in the Suit A to D Schedules properties and the children of Sahadeo though
Smt. Jinia Keotin were held not entitled to any share in the coparcenary
property in tern1s of Section 16(3) of the Hindu Marriage Act, 1955, though
they may claim to be entitled to their due share in the propertY of their
parents. During the pendency of the said appeal the Sahadeo Manjhi died and C
consequently his I/9th share was held to devolve upon all his heirs-the plaintiff,
daughter, defendant No.6 the mother, defendant No.7 the wife defendant
No.5 and his sons frogn Smt. Jinia Keotin, viz, defendant Nos. 9, JO and 12
and appellant No. 7. Since defendant No.I I died even during the lifetime of
Sahadeo Manjhi, he was not entitled to any share. Each of the eight heirs of
Sahadeo Manjhi was held entitled to inherit an equal share of 1/72 out of the D
said I/9th share. The plaintiff was, therefore, held entitled to 2172 equal to
 I/8th share in the coparcenary property comprised in A to D Schedules. The
appeal was allowed on the above terms and to the extent indicated. Not
satisfied, the mater was pursued by the 2nd wife and her children on Second
Appeal in S.A. No.315 of 1991 before the High Court of Patna. The ·said- E
appeal was dismissed on 20.12.1991. Hence, the above appeal by them before
this Court.

       Shri Lakshmi Raman Singh, the learned counsel for the appellants,
while reiterating the stand taken before the Courts below, vehemently
contended that once the children born out of void and illegal marriage have p
been specifically safeguarded under Section 16, as amended by the Central
Act 68 of 1976, there is no justification to deny them equal treatment on par
with the chlidren born of wife in lawful wedlock by countenancing claims for
inheritance even in the ancestral coparcenary property. It was also contended
by the learned counsel that inasmuch as but for the Hindu Marriage Act,
1955 there was no prohibition for an Hindu to have more than one wife and G
it is by virtue of the said Act such marriage became unlawful or void, once
the legislature by amendment of Section 16 chosen to legitimatise the children
born of such void marriages, the prohibition must be held to have been
relaxed and the stigma wiped out so as to render the progeny, legitimate for
all purposes and, therefore, the provisions of Section 16(3) of the Act also . H
    692                    SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.

A should be construed keeping in view the totality of circumstances and the
  object and purpose of the legislation in respect of right to inherit property
  also like the children born out of lawful wedlock. Per contra, Shri H.L.
  Agrawal learned senior counsel, with equal force contended that acceptance
  of the plea on behalf of the appellants would amount to rewriting the enactment
B which has expressed the legislative mandate in clear tenns in Section 16(3)
  and, therefore, no exception could be taken to the concurrent view taken by
  the courts below, in this regard.

         We have carefully considered the submissions of the learned counsel
  on either side. The Hindu Marriage Act underwent important changes by
C virtue of the Marriage Laws (Amendment) Act, 1976, which came into force
  with effect from 27.5.1976. Under the ordinary law, a child for being treated
  as legitimate must be born in lawful wedlock. If the marriage itself is void
  on account of contravention of the statutory prescriptions, any child born of
  such marriage would have the effect, per se, or on ·being so declared or
  annulled, as the case may be, of bastardizing the children born of the parties
D to such marriage. Polygamy, which was permissible and widely prevalent
  among the Hindus in the past and considered to have evil effects on society,
  came to be put an end to by the mandate of the Parliament in enacting the
  Hindu Marriage Act, 1955. The legitimate status of the children which
  depended very much upon the marriage between their parents being valid or
E 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 had to suffer a
  permanent set back in life and in the eyes of society by being treated as
  illegitimate. A laudable and noble act of the legislature indeed in enacting
  Section 16 to put an end to a great social evil. At the same time, Section 16
  of the Act, while engrafting a rule of fiction in ordaining the children, though
F illegitimate, to be treated as legitimate, notwithstanding that the marriage was
   void or voidable chose also to confine its application, so far as succession or
   inheritance by such children are concerned to the prope1ties of the parents
  only.

        So far as Section I 6 of the Act is concerned, though it was enacted to
G legitimise children, who would otherwise suffer by becoming illegitimate, at
  the same time it expressly provide in Sub-section (3) by engrafting a provision
  with a non obstante clause stipulating specifically that nothing contained in
  Sub-section (I) 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
H of nullity under Section 12, "any rights in or to the property of any person,
         JINIA KEOTIN v. KUMAR SITARAM MANJHI [DORAISWAMY ~AJU, J.]      693
other than the parents in any case w:1ere, but for the passing of this Act, such A
child would have been incapable of possessing or acquiring any such rights
by reason of his not being the legitimate child of his parents." In the light of
such an express mandate of the legislature itself, there is no room for according
upon such children who but for Section 16 would have been branded as
illegitimate any further rights than envisaged therein by resorting to any B
presumptive or inferential process of reasoning, having recourse to the mere
object or purpose of enacting Section 16 of the Act. Any attempt to do so
would amount to doing not only violence to the provision specifically en grafted
in Sub-section (3) of Section 16 of the Act but also would amount to court
re legislating on the subject under the guise of interpretation, against even the
will expressed in the enactment itself. Consequently, we are unable to C
countenance the submissions on behalf of the appellants. The view taken by
the courts below cannot be considered to suffer from any serious infirmity to
call for our interference, in this appeal.

     The appeal, therefore, fails and shall stand dismissed. No costs.
                                                                               D
K.K.T.                                                    Appeal dismissed.