Himachal Pradesh National Law University

Discipline – Family Law

Submitted To: -

Dr Sarita Klair

Submitted By: -

Yashasvi Sharma

BBA LLB (Hons.) (Sem 5th)

Enrolment No.: - 1120202148

(i)
ACKNOWLEDGEMENT

I Yashasvi Sharma would like to precise my sincere feeling to Dr Sarita Klair for her steering
and support during this project and for giving me an opportunity to work on the topic public
debt, his insight and valuable help has been of immense help. I conjointly appreciate the given
e-resources provided by university, these resources were of great help and facilitated for
analysis and knowledge concerning the project. This project is a success simply because of the
help and efforts provided by them.

(ii)
INDEX

S.NO TOPIC

1 Facts

2 Judgment

4 Analysis

5 Conclusion

6 Bibliography

3
FACTS

1. One Tukaram had been married to Dagubai, who is plaintiff No. 1. She has three daughters
from Tukaram. They are plaintiffs Nos. 2, 3 and 4. During the subsistence of his marriage with
Dagubai, Tukaram married Lilabai, who is defendant No. 2, sometime in the year 1976. From
her he got a son, Shantaram, who is defendant No. 1. Tukaram died in June, 1978. The plaintiffs
filed the suit against the defendants who were in possession of several properties which had
been left by Tukaram. The suit was, in particular, for a declaration that the defendants were not
the legal heirs of Tukaram, that they had no right, title or interest in the properties of Tukaram,
and for possession of the said properties. Since the plaintiffs, who were four in number, were
entitled to succeed to the estate of Tukaram, they also prayed for partition and possession of the
properties to the extent of ½th share to each of them.

2. In the alternative they prayed that in case it was held that the first defendant had a share in
the properties then the Court should determine the shares and partition the properties and give
the same in the respective possession of the parties. The main thrust of the plaintiffs, therefore,
in the suit was that the defendants were not the legal heirs of Tukaram because defendant No.
2 marred Tukaram during the subsistence of the latter's valid marriage with the first plaintiff.

3. The defendants resisted the suit by contending that the first plaintiff, namely Dagubai, had
been divorced by Tukaram as per the custom governing the community
to which the parties belonged and it was thereafter that Tukaram's marriage with the second
defendant took place. Hence the marriage between the second defendant and Tukaram was valid
and therefore the defendants were the heirs of Tukaram.

4. The learned trial Judge, after framing the necessary issues, held that though there was a
custom which permitted divorce, apart from the Hindu Marriage Act, in the community to
which the parties belonged, as a matter of fact there was no divorce between Tukaram and
Dagubai. He therefore necessarily held that Tukaram's marriage with the second defendant was
void under the provisions of section 11 read with section 5(i) of the Hindu Marriage Act. The
result was that the second defendant was not the validly married wife of Tukaram. In the
absence of a better compact word, we would be referring to her as the illegitimate wife. The
first defendant, who was the off-spring of the second defendant from her marriage with
Tukaram, was naturally an illegitimate son but for the provisions contained in section 16 of the
Hindu Marriage Act.1

1
Jinia Keotin Vs. Kumar Sitaram Manjhi (2003) 1 SCC 730
4
5. The legal consequence, according to the learned trial Judge, was that neither of the
defendants had a share in the properties of Tukaram. He, however, held that both the defendants
were entitled to maintenance. For this the learned trial Judge relied upon Rajeshbai Sadashiv
Khairnar v. Shantabai Sadashiv Khairnar, LXXXIII Bom.L.R. 327, wherein it has been held
by Masodkar J. that “where in any collateral proceedings after the death of a Hindu husband, a
finding is recorded by a competent Civil Court that his marriage with a woman was void de
jure that woman would be entitled to rely on the principles of section 25 of the Hindu Marriage
Act and invoke the powers of the Court for making provisions for just and fair maintenance”.2

6. While so holding, Masodkar J. in fact purported to apply a ruling of another judgment of this
Court, namely As far as the right of maintenance of children born of a void marriage is
concerned, section 21(viii) read with section 22 of the Hindu Adoptions and Maintenance Act,
1956 was sufficient authority. The learned trial Judge, therefore, proceeded to declare that
defendants were not the legal heirs of deceased Tukaram, and therefore they did not have any
right, title or interest in the properties left by him except the claim for maintenance. He also
directed the defendants to deliver possession of all the properties to the plaintiffs.

7. The plaintiffs who were four in number were entitled to 1/4th share in the said properties.
Usual directions under Order XX Rule 12(1)(c) of the Code of Civil Procedure were also given.
The learned trial Judge also decreed that defendant No. 1 do recover Rs. 2,400 per year as
maintenance till he becomes major from January 1983 and similarly defendant No. 2 do recover
Rs. 2,400 per year as maintenance for her life from January 1983 as long as she remained
unmarried. Charge was kept on the properties for the maintenance of both the defendants. This
was done by the learned trial Judge by his judgment and order dated 14th of December, 1982.

8. In respect of the finding recorded by the trial Court on the question of the divorce of Tukaram
from Dagubai, it had been urged in the Court below that some time in the year 1960 Tukaram
had transferred some of his properties in favour of Dagubai for her maintenance. It is suggested
that this Tukaram would not have done if he had not divorced her. 3

9. There is enough evidence to show that such transfer of properties was in fact made in favour
of Dagubai by Tukaram some time in the year 1960, Mr. Tipnis, the learned Advocate appearing
for the defendants, relied upon this circumstance for persuading us to hold that there was a
divorce between Tukaram and Dagubai. It has also been urged by Mr. Tipnis that the fact that
Tukaram and Dagubai did not have any male issue, though they have got three daughters,

2
Rajeshbai Sadashiv Khairnar v. Shantabai Sadashiv Khairnar, LXXXIII Bom.L.R. 327
3
Chandamma & Ors. Vs. Muktabai & Anr. (2008)
5
indicates that there was some sort of compulsion on the part of Tukaram to take a second wife
who would, according to the prevalent sentiment in the community, would give him a son.
Apart from these two circumstances, which Mr. Tipnis regards as strong circumstances, there
is the oral evidence of one Babulal, who was examined as defence witness No. 5.

HELD

On the facts of this case, the award of maintenance to the second defendant is, therefore,
upheld. The denial of a share to the first defendant in the property of deceased Tukaram is set
aside. We hold that the first defendant is entitled to a share in the property of deceased Tukaram
as a heir in Class I of the Schedule to the Hindu Succession Act. Admittedly the properties of
Tukaram in which the first defendant is entitled to a share and in respect of which the second
defendant is entitled to enforce her claim for maintenance are in possession of the defendants.
The amount of maintenance to the second defendant cannot become payable till the possession
is obtained by the plaintiffs and the first defendant. The charge which will have to be created
on the said properties after partition among the plaintiffs and the first defendant will be to the
extent of 20% on the share of each person who takes it after partition.

In the result, we proceed to substitute the following decree in place of the decree passed by the
trial Court:—

(1) The suit of the plaintiffs is hereby decreed as mentioned hereinafter, but without any order

(2) It is hereby declared that defendant No. 1 is a legal heir of deceased Tukaram Jairam Patil
and is a heir in Class I of the Schedule to the Hindu Succession Act.

(3) It is hereby declared that defendant No. 2 is entitled to maintenance during her life-time till
she remarries out of the properties of deceased Tukaram Jairam Patil.

(4) Each of the plaintiffs and the first defendant is entitled to 1/5th share in the said properties.
The properties shall be partitioned accordingly and possession of the share shall be given to the
plaintiffs and the first defendant.

(5) The second defendant is entitled to maintenance in the sum of Rs. 2,400/- per year from the
date on which the plaintiffs and the first defendant obtain possession of the properties according
to their share: The second defendant shall be entitled to such maintenance for her life as long
as she remains unmarried.

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(6) There shall be a charge for a sum of Rs. 480 per year on the properties allotted to each of
the plaintiffs and the first defendant who will be liable for maintenance to the extent of one-
fifth of the amount of maintenance.

(7) Enquiry into the future mesne profits will be made under Order XX Rule 18 of the Code of
Civil Procedure for the period from the date of the suit till the delivery of possession of the
property.

(8) In respect of the agricultural properties the decree shall be sent to the Collector for partition
in accordance with section 54 of the Code of Civil Procedure. There will be no order as to costs
in this appeal.

THE PROPOSITIONS OF LAW EMERGING FROM THE DISCUSSION MADE

ABOVE:—

I. In regard to a child of a void marriage:

(1) A child of a marriage which is void under the provisions of Hindu
Marriage Act, whether a decree of nullity is passed or not, is a legitimate child. [Section 16(1)
of Hindu Marriage Act];
(2) Such a child does not acquire right to property which a legitimate child would, but the
legitimacy confers upon him right to property of his parents. [Section 16(3) of Hindu Marriage
Act];
(3) The property to which such a child can lay claim must be the separate property of the parents
and not the coparcenary property in which the parent has a share. (Contrary view in Raghunath
v. Nana, LXXXVII Bom.L.R. 488 is not the correct law);
(4) Since no child, whether legitimate or otherwise, acquires right by birth in the separate
property of its parent, a child of a void marriage can only succeed to the property of its parent
in accordance with the provisions of section 8 or section 15 of the Hindu Succession Act;
(5) A child of a void marriage is related to its parent within the meaning of section 3(1)(j) of
the Hindu Succession Act because of the provisions of section 16 of the Hindu Marriage Act;
proviso to section 3(1)(j) must be confined “to those children who are not clothed with
legitimacy under section 16 of the Hindu Marriage Act.

II. In regard to a woman whose marriage is void or declared void under the Hindu
Marriage Act:

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(1) Section 25 of Hindu Marriage Act confers upon a woman, whose marriage is void or is
declared to be void, a right of maintenance against her husband;
(2) This right of maintenance can be enforced by her not only in proceedings under section 25
of Hindu Marriage Act but also in any other proceedings where the validity of her marriage is
determined;
(3) This right can be enforced by her not only during the life-time of her husband but also after
his death against the property of her husband after his death;
(4) Of course, this right of maintenance is available only during her life-time and ceases only if
she remarries.

ANALYSIS

• The present position therefore is that any children of a marriage which is null and void
under section 11 of the Hindu Marriage Act, whether there has been a decree of nullity
granted in respect of that marriage or not or whether the said marriage has been held to
be void or not in proceedings under the Hindu Marriage Act, would be regarded as
legitimate. The legitimacy, therefore, extends not only to the children of a void marriage
which has been declared so in proceedings under the Hindu Marriage Act but also to the
children of such a marriage, whether it has been so declared or not in proceedings under
the Act. The proviso to the original section 16 is sub-section (3) in the new section 16.
The effect of conferring legitimacy on a child of a void marriage is the same today as it
was before the amendment of 1976.

• The fact that Tukaram transferred some of his properties in favour of Dagubai in the
year 1960 for maintenance is, in our opinion, of little significance. At the most it may
suggest that Tukaram and Dagubai were living separately. Even that seems to be
doubtful because a daughter Sunanda was born to them in the year 1961. In any case,
such a circumstance as the transfer of some properties by Tukaram in favour of Dagubai,
his wife, does not, in our opinion, suggest that they were divorced.

• Somewhat stronger and more persuasive evidence is necessary to hold that a couple who
are married validly are validly divorced. Similarly, the fact that the couple did not have
any male issue itself would not suggest that Tukaram had divorced his wife Dagubai. It
may be noted that the transfer of properties in favour of Dagubai took place some time
8
 in the year 1960. The last of the three daughters was born to Dagubai in the year 1961.
The second marriage admittedly took place in the year 1976. If Tukaram wanted to
marry again to have a son after his apparent dissatisfaction with Dagubai who gave him
three daughters, he would not have waited for nearly 15 years for the second marriage.
It may be true that Tukaram, like so many ignorant persons both in India and abroad,
believed that the sex of a child is determined by the wife. It is a superstition which
compels a husband to seek another wife and brings misery to the lives of innocent
women who for no fault of theirs do not bear a male child.

• It is more than adequately established that the determination of the sex of a child is
wholly accidental — neither the husband nor the wife making any contribution to it. At
the time of the fertilization of the female egg and the spermatozoa, the sex is determined
depending upon the nature of the fertilization (see Encyclopaedia Britannica, Volume
27, 15th Edition, page 250). Though Tukaram might have shared an eagerness to have
a male child, on the facts of this case we are satisfied that he did not divorce Dagubai in
the year 1960 as contended by the defendants in order to take a second wife for the
purpose of having a male child.

• The Court held that though by virtue of Section 16(1) of the Hindu Marriage Act, the
illegitimate child has been conferred the status of a legitimate child, it did not confer the
status of a coparcener. Consequently, such a child does not acquire any right by birth in
any property, much less coparcenary, joint family property or ancestral property. Their
right to claim the share remains limited only to the extent of the separate property of
their father, but in that property, they cannot make any claim during the lifetime of their
father. Their right in the separate properties of their father will accrue only on the death
of their father and, that too, by way of succession.In view of the legal position above,
the Bombay High Court concluded that Appellant Nos.3 and 4 would get their share in
the property only by way of succession, in the 1/4th share of Appellant No.1 on his
dying intestate. They were not entitled to a share in the ancestral property of their father.

9
CONCLUSION

We now summarise propositions of law emerging from the discussion made above :---
In regard to a child of a void marriage. A child of a marriage which is void under the provisions
of Hindu Marriage Act, whether a decree of nullity is passed or not, is a legitimate child [section
16(1) of Hindu Marriage Act],
Such a child does not require right to property which a legitimate child would, but the
legitimacy confers upon him right to property of his parents. [Section 16(3) of Hindu Marriage
Act]. The property to which such a child can lay claim must be the separate property of the
parents and not the coparcenary property in which the parents has a share

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BIBLIOGRAPHY

1. Rajeshbai Sadashiv Khairnar v. Shantabai Sadashiv Khairnar, LXXXIII Bom.L.R. 327

2. Chandamma & Ors. Vs. Muktabai & Anr. (2008)
3. Thehindu.com
4. Economictimes.com
5. Livelaw.in
6. Leadindia.com

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