Whether child born prior to marriage can be treated as legitimate?

The legal fiction created by the legislature is that children, though illegitimate, shall nevertheless, be treated as legitimate, notwithstanding that the marriage was void or voidable. The legal fiction specifically intended by the legislature to bring about legitimacy on the children is intended to bring about a social reform. Extension of the benefit of the legislation to children born out of any relationship, during the subsistence of the first marriage, without there being any marriage, between the parties, at the time of the birth of child, would in my view, be against the sanctity attached to marriage, which according to Hindu Law is a holy union, which is not a contract. The intention of the parties to marry subsequently and give recognition to their son, born before their marriage is different from applying the legal fiction, created by the enactment. The law enacted with the object of eliminating the discrimination between two grounds of illegitimate children, has not dealt with the children born out of illicit relationship.

47. Though live-in relationship as husband and wife is now considered and recognised by Courts, where presumption of marriage can also be raised, on account of leading a life of husband and wife, for a long number of years, there is no legislation, legitimizing the birth of child born before marriage, by subsequent marriage and it is for the legislature to consider standards of living and whether it would being about social reforms, affecting the sanctity attached to the marriage.

IN THE HIGH COURT OF MADRAS

S.A. No. 315 of 2006

Decided On: 07.12.2011

Appellants: General Manager, Southern Railway
Vs.
Respondent: R. Thangaraja

Hon'ble Judges/Coram:
S. Manikumar, J.

 Citation: 2012-1-LW189, (2012)2MLJ720

S. Manikumar, J.

1. The only question to be decided in this Second Appeal is whether, under Section 16(1) of the Hindu Marriage Act, 1955, a Court can legitimise a son, born before the marriage of his parents, when the first marriage of the father of the child with another person, was subsisting, when the child was born. The General Manager, Southern Railways and two others, have challenged the judgments and decrees of the Courts below, declaring one T. Mathiarasan, as the legitimate son of the plaintiff and K. Mohanambal, whose marriage had been registered subsequent to the birth of their son. The child was born on 28.9.1993. F.C.O.P. No. 1389 of 1994, was filed by the father of the Child, for dissolution of his marriage, with one Muthuiakshmi in 1994, after the birth of the child. Divorce with the first wife, was granted in the year 1995. The marriage with K. Mohanambal, mother of the child was registered on 2.2.1996. For sake of convenience, the parties are addressed as per the letigative status in the lower Court.

2. Plaint averments in detail are as follows: The plaintiff is a Head Constable working in the office of the Assistant Security Commissioner, RPF., Crime Intelligence Branch, Chennai, third defendant. He married one Muthuiakshmi on 9.9.1984 and owing to a rift in the family, he filed F.C.O.P. No. 1389 of 1994, before the Second Additional Family Court, Chennai. A decree of divorce was granted on 6.7.1995. Thereafter, he married one K. Mohanambal on 2.2.1996 and that the said marriage was registered by the Marriage Registering Authority, Chennai. Thereafter, he sought for inclusion of the name of his wife, K. Mohanambal and his son, T. Mathiarasan, in the Official records. He was born on 28.9.1993. The third respondent, by his order, dated 2.7.1996, directed inclusion of the name of K. Mohanambal in the official records. However, insofar as his son, the Senior Security Commissioner, RPF, Southern Railway, Chennai, second defendant, by his letter, dated 25.4.1996, informed the plaintiff, stating that he should file a declaratory suit, before the competent Court and produce a decree, declaring that his son, T. Mathiarasan, was born to him. It is the admitted case of the plaintiff that T. Mathiarasan was born on 28.9.1993, i.e. prior to registration of his marriage with K. Mohanambal.

3. In these circumstances, the plaintiff caused a notice on 18.6.1996, under Section 80 C.P.C. to defendants 1 and 2, stating that no declaration from any competent Court is necessary, as he had already furnished the marriage and birth certificates and that therefore, there is no impediment to include the names of both his wife and son, in the official records, as his legal heirs. As there was a failure on the part of the respondents, making necessary entries in the Service Register, the plaintiff has filed the suit to declare that T. Mathiarasan, as his legitimate son and K. Mohanambal as his wife. Consequently, he has sought for a direction to the defendants to include K. Mohanambal and T. Mathiarasan, in his official records, as his legally wedded wife and his legitimate son respectively.

4. The second defendant in his written statement, admitted that the plaintiff is employed as a Head Constable/RPF, in the Office of third respondent, and his first wife was Muthuiakshmi. As per the decision of the learned Second Additional Principal Judge, Family Court, Madras in F.C.O.P. No. 1389 of 1994, dated 6.7.1995, the name of the first wife, Muthuiakshmi, has been deleted in all official records, with effect from 6.7.1995, vide memo, dated 27.9.1995. The second marriage with one K. Mohanambal on 2.2.1996, has been entered in the official records. However, the inclusion of T. Mathiarasan was not done, as the plaintiff had not disclosed the birth of T. Mathiarasan, on 28.9.1993 or at any point of time. Further, it was also contended that the birth of T. Mathiarasan, during the subsistence of first marriage, was a serious misconduct, involving moral turpitude.

5. The second defendant has further submitted that the suit itself is bad for non-joinder of K. Mohanambal and T. Mathiarasan, as parties to the proceedings. He also submitted that the plaintiff has to approach the Revenue Authority for obtaining a legal heir certificate, to include the name of T. Mathiarasan, as his son and also file a petition before the competent Court, for remedy under the Indian Succession Act. In sum and substance, the defendants have submitted that T. Mathiarasan, cannot be declared as the legitimate son of the plaintiff. For the above said reasons, they prayed for dismissal of the suit.

6. On the above pleadings, the trial Court framed the following issues for consideration;

(i) Whether T. Mathiarasan, is the legitimate son of the plaintiff?

(ii) Whether in the service register, the names of K. Mohanambal and T. Mathiarasan, should be recorded as wife and son respectively?

(iii) To what relief, the plaintiff is entitled to?

7. Before the lower Court, the plaintiff and K. Mohanambal examined themselves as P.Ws.1 and 2. Exhibits A-1 to A-11 were marked on their side. There was no oral and documentary evidence on the side of the defendant. The trial Court, on evaluation of pleadings and evidence, by judgment and decree, dated 7.1.2004, granted a decree of declaration, holding that T. Mathiarasan, is the legitimate son of the plaintiff. Mandatory direction was also granted to include the names of both K. Mohanambal and T. Mathiarasan, as wife and son respectively in the official records. The defendants were also directed to make necessary entries before 2.4.2004.

8. Being aggrieved by the judgment and decree, the defendants preferred an appeal in A.S. No. 330 of 2004 before the IIIrd Additional City Civil Court, Chennai. Upon consideration of the material on record, the lower appellate Court, has framed two points for consideration,

(i) Whether the plaintiff is entitled to seek for a declaration that T. Mathiarasan, as his legitimate son and for a consequent mandatory injunction?

(ii) Whether the judgment and decree of the lower Court is correct or to be set aside?

9. On consideration of the material on record, the lower appellate Court confirmed the decision stated supra. Being aggrieved by the same, the defendants have preferred the present second appeal, which has been entertained, on the following substantial questions of law.

(a) Whether the suit for declaration and mandatory injunction as framed by the respondent to declare T. Mathiarasan, as his son, by virtue of the provisions, as contained in Section 16 of the Hindu Marriage Act, is legally maintainable, when it is the admitted fact that the said T. Mathiarasan, was born to the respondent and K. Mohanambal on 28.3.1993, when there was no subsisting marriage and the marriage had admittedly taken place subsequently on 2.2.1996?

(b) Whether the Courts below erred in not considering the dictum of the Hon'ble Court in the judgment in K. Munuswami Gounder v. M. Govindaraju MANU/TN/0553/1995: 1995 (1) LW 487 : LNIND 1995 Mad 916?

10. On the above substantial questions of law, Mr. V.G. Suresh Kumar, learned counsel appearing for the Railways submitted that the plaintiff was initially married to one Muthulakshmi on 9.9.1984 and that when T. Mathiarasan, was born to the plaintiff and Mohanambal, on 28.9.1993, the first marriage between the plaintiff and the said Muthulakshmi, was subsisting. He further submitted that on the date of birth of T. Mathiarasan, i.e., 28.9.1993, there was no marriage between the plaintiff and K. Mohanambal.

11. Referring to Section 16 of the Hindu Marriage Act and the decisions of this Court in K. Munuswami Gounder v. M. Govindaraju (supra), Singaram v. Subramaniam 1999 (III) CTC 136 and G. Sekar v. Geetha 2007(2) CTC 17 : (2007) 3 MLJ 1029, learned counsel for the appellants/defendants submitted that, when admittedly, the marriage between the plaintiff and K. Mohanambal, the second wife was registered only on 2.2.1996, the declaration granted by the lower Court and confirmed by the first appellate Court that, T. Mathiarasan be recognised as the legitimate son, is contrary to the statutory provision. According to him, the question of declaring the legitimacy of T. Mathiarasan, under Section 16(1) of the Hindu Marriage Act, 1955, would arise, only if there was a marriage between the above two persons.

12. Per contra, to sustain the impugned judgments, Mr. C. Regurajan, learned counsel appearing for the plaintiff submitted that no doubt, T. Mathiarasan was born on 28.9.1993 before the dissolution of the first marriage, between the plaintiff and his first wife, Muthulakshmi, the defendants cannot dispute the parentage of the child. He further submitted that both the plaintiff and K. Mohanambal were living as husband and wife, continuous for a long period and that therefore, there is a legal presumption of marriage between them. It is also his further contention that when both the plaintiff and K. Mohambal, in their evidence, have categorically admitted that T. Mathiarasan, was born to them, there is no manifest error in the judgments and decrees of the lower Courts, warranting interference.

13. Learned counsel further submitted that Section 16 of the Hindu Marriage Act, is a beneficial legislation, enacted with an intention that no innocent child should be bastardized by the conduct of their parents and therefore, prayed that this Court to consider the plight of the child, in the background of the beneficial enactment. However, as the marriage between the plaintiff and K. Mohambal has been registered before the Marriage Registering Authority on 2.2.1996, as per Exhibit A-5, he further submitted that T. Mathiarasan and in the light of the admission of the parents, there is no illegality in declaring the legitimacy of the child, as the legitimate son of the plaintiff and consequently, he is entitled for inclusion in the service registers of the plaintiff. According to him, Railways have no authority to object to the declaratory decree, when the parents have admitted the legitimacy of their son. He also placed reliance on few decisions, regarding presumption of marriage and legitimacy, which are dealt with, in the latter paragraphs of this judgment.

Heard the learned counsel for the parties and perused the materials available on record.

14. Before adverting to the facts of this case, it is necessary to extract Section 16 of the Hindu Marriage Act, 1955 (hereinafter, referred to as "the Act"), which deals with legitimacy of children of void and voidable marriages.

76. Legitimacy of children of void and voidable marriages. (1) Legitimacy of children of void and voidable marriages. Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, (68 of 1976.) and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or 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.

15. In the leading judgment of the Supreme Court in P.E.K. Kalliani Amma v. K. Devi MANU/SC/0487/1996 : AIR 1996 SC 1963 : (1996) 4 SCC 76 : (1996) 2 MLJ 82, after considering the enactments and the concept of marriage, status of legitimacy, the need for amendment to the Hindu Marriage Act, 1955, the Apex Court, interpreted Section 16 of the Hindu Marriage Act and at paragraphs 66, 68, 74 to 79, held as follows at p. 94 of MU:

66. The question now to be considered is the question relating to the 'vires' of the Section its present from, or, to put it differently, if Section 16, as originally enacted, contravened, any way, Article 14, for the reason that it discriminated between two groups of illegitimate children similarly circumstanced, does the Section, after its amendment by Act No. LXVIII of 1976 continue to be still violative of Article 14.

68. Hindu Marriage Act, 1955 is a beneficent legislation and, therefore, it has to be interpreted in such a manner as advances the object of the legislation. The Act intends to bring about social reforms, conferment of social status of legitimacy on a group of innocent children, who are otherwise treated as bastards, is the prime object of Section 16.

74. Section 16(1) begins with a non obstante clause.

75. "Non obstante clause is sometimes appended to a Section in the beginning, with a view to give the enacting part of the Section, in case of conflict, an over-riding effect over the provision or Act mentioned in that clause. It is equivalent to saying that in spite of the provision or Act mentioned in the non obstante clause, the enactment following it, will have its full operation of that the provision indicated in the non obstante clause will not bean impediment for the operation of the enactment." (See: Union of India v. G.M. Kokil MANU/SC/0210/1984 : AIR 1984 SC 1022 : (1984) (Supp.) SCC 196; Chandavarkar Sita Ratna Rao v. Ashalata S. Gurnam (1986) (4) SCC 447(477) R.S. Raghunath v. State of KarnatakaMANU/SC/0012/1992 : (1992) 1 SCC 335; G.P. Singh's Principles Of Statutory Interpretation).

76. The words "notwithstanding that a marriage is null and void under Section 11" employed in Section 16(1) indicate undoubtedly the following:

(a) Section 16(1) stands delinked from Section 11.

(b) Provisions of Section 16(1) which intend to confer legitimacy on children born of void marriages will operate with full vigor in spite of Section 11 which nullifies only those marriages which are held after the enforcement of the Act and in the performance of which Section 5 is contravened.

(c) Benefit of legitimacy has been conferred upon the children born either before or after the date on which Section 16(1) was amended.

(d) Mischief or the vice which was the basis of unconstitutionality of unamended Section 16 has been effectively removed by amendment.

(e) Section 16(1) now stands on its own strength and operates independently of other Sections with the result that it is constitutionally valid as it does not discriminate between illegitimate children similarly circumstanced and classifies them as one group for conferment of legitimacy.

Section 16, in its present from is therefore, not ultra vires the Constitution.

77. Section 16 contains a legal fiction. It is by a rule of fictio juries that the legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate not with standing that the marriage was void or voidable.

78. When an Act of parliament or a state Legislature provides that something shall be deemed to exist or some status shall be deemed to have been acquired, which would not have been so acquired or in existence but for the enactment, the Court is bound to ascertain the purpose for which the fiction was created and the parties between whom the fiction was to operate, so that full effect may be given to the intention of the legislature and the purpose may be carried to its logical conclusion. (See: JK Cotton Spg. & Wvg Mills Ltd. v. Union of India, MANU/SC/0403/1987 : AIR 1988 SC 191; American Home Products Corporation v. Mac Laboratories MANU/SC/0204/1985 : AIR 1986 SC 137: (1986) 1 SCC 456. Lord Asquith in Bast End Dwellings Co. Ltd. v. Finsbury Borough Council, (1952) AC 109 B : (1951) 2 All ER 587 observed that when one is bidden to treat an imaginary state of affairs as real, he must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which inevitably have flowed from it-- one must not permit his imagination to boggle when it come to the inevitable corollaries of that state of affairs. (See also : M. Venugopal v. Divisional Manager, LLC (1994) 2 SCC 323).

79. In view of the legal fiction contained in Section 16, the illegitimate Children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.

16. The Supreme Court in P.E.K. Kalliani Amma v. K. Devi (supra) has held that the amendment brought about was with an intention to bring out a social status of legitimacy on a group of innocent children, who are otherwise treated as bastards. When the amendment was brought about, the legislature in its wisdom, has recognised marriage between the parties, as one of the important factors, for conferring legitimacy on the children and it was not the intention of the legislature to confer on the children, born out of any illicit relationship, where there was no marriage, between the parties. When the amendment was brought about, Courts in India, have not even visualised a relationship, now recognised by the Courts, called live-in-relationship.

17. In Jinia Keotin v. Kumar Sitaram Manjhi MANU/SC/1192/2002: (2003) 1 SCC 730, the Supreme Court has considered a question as to whether an illegitimate child is entitled to share in the co-parcenary property and at Paragraph 5 of the judgment, held as follows:

So far as Section 16 of the Act is concerned, though it was enacted to 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 (1) or 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." In the light of such an express mandate of the legislature itself, there is no room for according upon such children who but for Section16 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. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in sub-section (3) of Section 16 of the Act but also would attempt to Court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself. Consequently, we are unable to 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.

18. A combined reading of the judgments makes it clear that the intention of the legislature, in amending Section 16 of the Act, is to avoid bastardizing a child, born out of void or voidable marriages and to confer the status of legitimacy to the innocent child, who should not be made to suffer for the mistake of their parents, over which, the child has no control. In Jinia Keotin v. Kumar Sitaram Manjhi (supra), the Supreme Court further observed that the innocent children had to suffer a permanent set back in life and in the eyes of society, by being treated as illegitimate and therefore, by a laudable and noble act, the legislature, indeed, in enacting Section 16, has put an end to a great social evil. However, the Supreme Court, while interpreting Section 16(3) of the Act, chose to confine the operation of the applicability of Section 16(3) of the Act, insofar as succession or inheritance by such children, only to the properties of the parents, excluding all other properties and thereby, by holding that the illegitimate children, cannot have any rights, as co-parceners of the joint family.

19. Reading of Section 16 of the Act and the judgments of the Supreme Court, also make it clear that legitimacy of the child, which is a status, is wholly dependent upon the marriage between the parents, being void or voidable. The question of a child being born, before marriage and subsequently recognising the same by the conduct of the parents, in either solemnizing the marriage or registering the marriage, after performing the religious rites or registering their marriage before the competent authority, has not been contemplated at the time when the amendment was made. In P.E.K. Kalliani Amma v. K. Devi (supra), the Supreme has set out the requirements for the applicability of Section 16 of the Act (as originally enacted), which protected legitimacy, as follows:

(i) there was a marriage;

(ii) the marriage was void under Section 11 or voidable under Section 12.

(iii) there was a decree annulling such marriage either under Section 11 or under Section 12.

(iv) the child was begotten or conceived before the decree was made.

20. The only impediment in legitimacing the children as originally stood in Section 16(iii) has been deleted by the amendment Act. Let me now consider the case laws relied on by the learned appearing for the plaintiffs.

21. In Smt. Tulsan Devi v. Smt. Krishni Devi MANU/PH/0111/1973: AIR 1973 P & H 442, the question that was decided by the Division Bench of Punjab and Harayana High Court, was whether a petition for nullity of marriage under Section 11 of the Act, can be filed by a spouse after the death of the other. The above said decision is inapposite to the instant case.

22. In S.P.S. Balasubramanyam v. Suruttayan @ Andali Padayachiand AIR 1993 SC 133, one Manthi, admittedly, had three sons, one of them was Chinathambi. His legally wedded wife was one Pavayee. He also lived with another woman, whose name, too, was Pavayee. From the second Pavayee, he had issues one of them being Ramaswamy. He sold his one-third share, which he received from his father, Chinathambi, in 1971 to the appellant. This was resisted by descendants of other two branches, i.e., descendants of the other two sons of Manathi. The appellant-purchaser therefore filed a suit for declaration and recovery of possession. Two main questions arose for consideration. One, whether Ramaswamy was the legitimate child of Chinathambi and the other question is not relevant for the purpose of the present case on hand. The trial Court accepted the claim of defendants that, Ramaswamy was the illegitimate child of Chinathambi as second Pavayee was only a concubine and not a legally wedded wife of Chinathambi. It was also found that the deed of settlement made by Chinathambi could not convey any right, title or interest in favour of Ramaswamy or his mother, as it was in respect of coparcenary property or joint family property and, therefore, the deed of settlement was held as invalid. In appeal, both the findings were set aside. The Appellate Court found that Chinathambi and Pavayee No. 2, having lived together, as husband and wife since 1920, a presumption arose in law that they were husband and wife. The Appellate Court further found that in the compromise entered between the three sons of Manthi, in the suit filed by Chinathambi, there was a partition and that the parties agreed that the compromise arrived at by them, may be given effect to, without effecting any partition by metes and bounds, as they were in possession of their separate shares. It was therefore, held that Chinathambi has got exclusive right over his share under the compromise and that he was entitled to execute a deed of settlement in 1968. In the second appeal, it was contended and accepted that the presumption drawn by the Appellate Court was found to have been rebutted and that if Pavayee No. 2 was the legally married wife of Chinathambi, her name or the name of her sons would have found place in the will executed by Manthi, the father of Chinathambi. The High Court also found that when the compromise was arrived at between the members of the family, in a suit filed by Chinathambi, no reference has been made, either to the 2nd Pavayee or to her offspring, namely, Ramaswamy. Testing the correctness of the judgment, the Supreme Court, on the facts of the above case, held that,

if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable.... omission to mention the name of a woman who was living as a concubine and her offspring in the will executed by the father-in-law could not destroy the presumption which otherwise arose in law. In the Hindu society no father would, normally, tolerate behaviour of his son of having a concubine, therefore, the mere fact that Manthi while executing the will did not mention the name of Pavayee No. 2 or her offspring was of no consequence. Similarly the absence of any reference to Pavayee and her children in the compromise entered into between Chinathambi and his brothers was totally irrelevant circumstance.

23. In the above reported judgment, the Supreme Court on the principles of law that long living as husband and wife, raises a presumption of marriage, between the parties, and omission to mention the name of Pavayee or his son, the will executed by Manthi, would not materially affect the right of the father, to execute a settlement in favour of his son. The reported judgment relied on by the respondent/plaintiff, can be applied to the facts of this case, if only there could be a pleadings in the present case to the effect that the respondent/plaintiff, was in fact, living as husband and wife, for a long time, and that they begotten a child, during the subsistence of any marriage, there was any recognition by others, that the parties lived as husband and wife, In the case on hand, excepting K. Mohanambal, the second wife, nobody has been examined.

24. In Ranganath Parmeshwar Panditrao Mali v. Eknath Gajanan Kulkarni MANU/SC/0340/1996 : AIR 1996 SC 1290 : (1996) 7 SCC 681, the Supreme Court, while considering the facts of the case, where, living together, as husband and wife, for a long number of years, and admitted by the adversaries in the suit, held that it would give rise to presumption of a valid marriage.

25. In S. Ajarma Bi v. S. Khurshid Begum MANU/SC/0436/1996 : AIR 1996 SC 1663, the dispute related to a property, which belonged to one M. Abdul Sattar and his brother M. Sattar. Respondent 1 and 2 were the daughters of M. Sattar, through his first wife, the third respondent. The two appellants before the Supreme Court claimed themselves to be the offspring of M. Sattar, through his second wife. They challenged a deed of settlement by the aforesaid Sattars, relating to the property, in favour of respondent 1 and 2, on the ground that the same had been obtained by misrepresentation, fraud and coercion. After the death of both the Sattars, the appellants filed a suit on the file of Court of the learned Subordinate Judge, Coimbatore, claiming that they were entitled to share in the property. The respondents' case was that the appellants were illegitimate children of M. Sattar and that the settlement deed was valid. It was inter alia contended that the finding of the High Court, relating to legitimacy was untenable, inasmuch as the Court gave undue importance to Exhibit A-9, copy of the marriage register, containing the recital of marriage of M. Sattar and his second wife, stating "I affirm that this date, I have married". In addition to the above, it was further submitted that there were many documents to show that M. Sattar had acknowledged paternity, prior to that date. It was also contended that the acknowledgements were not viewed in proper perspective by the High Court. In view of the principles underlying in Sections 112 and 114 of the Evidence Act, the Supreme Court held that the above two Sections, give rise to presumption against concubinage and permitted raising of presumption of legitimacy of the children born, during the period of continuous cohabitation. In the above reported judgment, it is also to be noted that the learned counsel appearing for the respondents had expressed no objection to hold that the appellants therein were legitimate offspring of M. Sattar, provided the interest of the respondents therein, was adequately protected qua, other properties of the two Sattars. In the above context, the Supreme Court, held that the appellants therein were treated as legitimate children of M. Sattar. Acknowledgment of paternity is accepted in Mohammedan Law.

26. In Rameshwari v. State of Bihar MANU/SC/0043/2000: AIR 2000 SC 735 : (2000) 2 SCC 431 : 2000-1 LLJ 1087, the dispute was relating to payment of family pension and death-cum-retirement gratuity to two wives of Narain Lal, who died in 1987. The appellant before the Supreme Court was the first wife. Narain Lal was stated to have married one Yogmaya Devi, as the second wife, on 10.4.1963, while the first wife, was still alive. Through the first marriage, he had one son and from the second marriage, four sons were born in 1964, 1971, 1972 and 1976 respectively. The learned single Judge held that children born to Narain Lal, from the wedlock with Yogmaya Devi were also entitled to share the family pension and death-cum-retirement gratuity and further that family pension would be admissible to the minor children only till they attained majority. The learned single Judge held that the second wife, Yogmaya Devi was not entitled to any share. The appeal filed by the first wife, Rameshwari Devi, was dismissed. Before the Supreme Court, it was contended that there was no marriage between Narain Lal and Yogmaya Devi and the children were not legitimate. On the above facts and evidence, the Supreme Court, held that continuous living of Narain Lal and Yogmaya Devi raises a presumption of marriage. In the reported case, the Supreme Court also noticed that after the death of Narain Lal, an inquiry was made by the State Government, as to which of the wives of Narain Lal was his legal wife and in fact, during inquiry, two witnesses testified that Narain Lal and Yogmaya Devi were living as husband and wife and four sons were born from the wedlock. Besides, there was also evidence that the sons of Yogmaya Devi, were shown in the records, as sons of Narain Lai.

27. In Solaimuthu v. State MANU/TN/0034/2004 : 2005 Cri.L.J. 31 : (2004) 1 MLJ (Crl) 336, this Court, considering the statutory provision under Section112 of the Indian Evidence Act and the positive evidence of the woman, claiming that the petitioner therein had fathered her child, held that it shall be the conclusive proof that the child is legitimate son of the petitioner therein.

28. Let me consider the judgments relied on by the learned counsel for the appellants/defendants. A Division Bench of this Court in K. Munuswami Gounder v. M. Govindaraju MANU/TN/0553/1995 : 1995 (1) LW 487, considered a case where a suit for partition and separate possession was laid. The contention of the first defendant therein was that when her marriage was subsisting, the husband contracted illicit intimacy with another person and that the plaintiff therein, who was born to such relationship, cannot be said to be an illegitimate son. Having regard to the provision under Section 16 of the Hindu Marriage Act, 1955, as amended by the Amendment Act, 1976, the Division Bench, considered as to whether there was a marriage, having been performed between the plaintiffs father and his mother, Pappammal. Since, according to the said provision, any child born of a marriage would have been legitimate, if the marriage had been valid, and shall be legitimate, irrespective of the fact, whether the said marriage is null and void under Section 11 of the Hindu Marriage Act, 1955, the Division Bench observed that it is for the plaintiff therein, to prove the factum of marriage for his entitlement to a share in the suit property. The Division Bench, after considering the evidence on record, at paragraph 9, held as follows:

It is settled law that even the illegitimate children are entitled to a share in the estate in view of the provisions of Section 16 of the Hindu Marriage Act as amended by the Amendment Act of 1976. As per Section 16(1) of the Hindu Marriage Act, any child born of a marriage, who would have been legitimate if the marriage had been valid, shall be legitimate irrespective of the fact that that marriage is null and void under Section 11, and whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under the Hindu Marriage Act and whether the marriage is held to be void otherwise than on a petition under that Act, We are of the view that Section 16(1) of the Hindu Marriage Act comes into operation only in a case in which a marriage is in fact proved to have taken place between two persons but which may be null and void as per the provisions of the Act. We have, therefore, to see, whether the case on hand is a case of marriage having been performed between Pappammal and the 1st defendant or whether it is a case of no marriage between these two. If the plaintiff is able to prove that the present is a case of marriage between Pappammal and the 1st defendant, he would be entitled to a share in the properties of his father as per Section 16(1) of the Hindu Marriage Act, since, according to the said provision, any child born of a marriage would have been legitimate if the marriage had been valid, and shall be legitimate irrespective of the fact that the marriage is null and void under Section 11 of the Hindu Marriage Act. If the plaintiff fails to prove the factum of marriage, he would not be entitled to any share in the suit properties.

The Division Bench, at paragraphs 22 and 23, held as follows:

The Court is not justified in the circumstances of this case in raising the legal presumption of lawful marriage arising out of long cohabitation and repute under Section 114, Evidence Act. Therefore, the conclusion is that no marriage had taken place between P and the 1st defendant. When the factum of marriage is not proved, we have to treat this case as a case of no marriage and therefore, Section 16(1) of the Hindu Marriage Act is not attracted and the children born out of such relationship cannot get the benefit of Section 16(1) of the Hindu Marriage Act.

29. In Singaram @ Velayudha Udayar v. Subramaniam MANU/TN/0194/1999 : 1999 (3) CTC 136 : LNIND 1999 Mad 537, a learned single Judge, held that existence of void and voidable marriage between parents of individual, who claim status of illegitimate child to get share from estate of father is a condition precedent. The Court further held that Section 16 does not deal with rights of children through concubinage, but only deals with rights of illegitmate children born through marriage, which is void or voidable. One of the contentions raised before this Court was that there was a long co-habitation, living together as husband and wife and that even if there was no form of marriage, it should be presumed that there was a marriage. The said contention has been rejected and that this Court, at paragraphs 19 to 21, held as follows:

19. Sub-section (3) provides that in case of a child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12 though the child may be a illegitimate child under sub-section (1) or (2) the child would be entitled only to possess oracquire rights in or to any property of its parents and not to those of others, in fact, it means such child would not have the status of a legitimate so far as the Dersons other than the parents are concerned.

20. A thorough reading of Section 16 makes it clear that there should be avoid or voidable marriage between the parents of the individual who claims the status of an illegitimate child to get a share from out of the estate of his father. If there is no proof of any marriage, then the children born cannot also be treated as illegitimate children entitled for a share. In the judgment in Muthayya v. Kamu, MANU/TN/0367/1980 : (1981) 1 MLJ 107 it has been held as follows:

The result is there is no proof of any marriage between the first plaintiff and Meenakshisundaram and that the children born cannot also be treated as legitimate children.

22. In the case on hand there is absolutely no evidence to establish the question of marriage between Nainamalai and the fourth defendant. More so, both the Courts below have concurrently, on a question of fact, held that there was no marriage at all in any form between the said Nainamalai and the fourth defendant. When there is no marriage, the fourth defendant can be only a concubine of the said Nainamalai. Section 16 of the said Act do not deal with the rights of the children through the concubinage.

30. In G. Sekar v. Geetha (supra), the Division Bench held that merely because there was an assertion made in the written statement filed by the defendant that X had married for the second time and got two children, it is not sufficient to come to the conclusion that there was a second marriage. The dispute related to the property of one M.K. Govinda Singh. He had married one Sakunthala Bai. He had one son G. Sekar, appellant therein and four daughters. Out of which, two daughters claimed partition of the properly of Govinda Singh. In the suit in C.S. No. 153 of 1996, an application was filed by one Mr. G. Ramesh, for being impleaded as a party to the suit, on the ground that the deceased Govinda Singh, had also married one Saroja, as second wife and had begotten two daughters and one son, namely, Jothi and Maya and Ramesh, respondents therein. On the basis of such averments, Ramesh was impleaded as defendant No. 4. G. Sekar, (appellant therein), the first defendant in C.S. No. 153 of 1996, filed a written statement contending that Govinda Singh had not died intestate, but he had left behind a Will bequeathing the suit property and other movable properties, to the first defendant and, therefore, the plaintiffs have no right to seek for partition to such properties. He also filed a Testamentary Original Suit No. 4 of 1998 for the grant of Letters of Administration, on the basis of such Will, dated 29.11.1995. In T.O.S. No. 4 of 1998, the four daughters of deceased Govinda Singh through Sakunthala Bai were impleaded as defendants 1 to 4 and two daughters and one son of Saroja, the alleged second wife of Govinda Singh, were also impleaded as defendants 5, 6 and 7 respectively. The fourth defendant in C.S. No. 153 of 1996, in his written statement contended that all the children of Govinda Singh, through the first wife, as well as the second wife, are entitled to share and, therefore, each heir should get 1/8th share in the property. He had denied the genuineness of the alleged will. On the above pleadings and evidence, a learned single Judge, came to the conclusion that Govinda Singh had a second wife, by name, Saroja and through whom, defendants 5, 6 and 7 in T.O.S. No. 4 of 1998, had been begotten and even though the marriage with the second wife was void, under Section 5(i) of the Hindu Marriage Act, the children through such void marriage were to be treated as legitimate children and entitled to succeed to the self-acquired property of Govinda Singh, under Section 16(1) of the Hindu Marriage Act, 1955. Testing the correctness of the judgment of the learned single Judge, on the material on record, the Division Bench, at paragraph 9, held that,

9. The question is whether the learned single Judge was correct in coming to the conclusion that Govinda Singh had a second wife merely because such assertion made by Ramesh in the written statement had not been denied by the parties. G. Vijaya, the second plaintiff in C.S. No. 153 of 1996 was examined as D.W.1. She has stated that one Saroja was "my father's concubine". Sekar, the plaintiff in T.O.S. No. 4 of 1998 and defendant No. 1 in the connected partition suit was examined as P.W.2. In his examination in chief, he has stated that he had two elder sisters and two younger sisters, namely, Shanthi, Lima, Geetha and Vijaya, There is no suggestion to him that his father had married for the second time and defendants 5, 6 and 7 in T.O.S. No. 4 of 1998 had been begotten through such second wife. Defendant No. 4 has not examined any witness to prove about the alleged second marriage. Merely on the basis of the assertion made in the written statement filed by him alleging that Govinda Singh had married for second time and had begotten three children is not sufficient to come to the conclusion that in fact there was a second marriage. In view of this, the question of applying Section 16 of the Hindu Marriage Act does not arise at all for consideration.

31. In Bharatha Matha v. R. Vijaya Renganathan MANU/SC/0400/2010 : (2010) 11 SCC 483 : LNIND 2010 SC 515, the Supreme Court held that the child born of void or voidable marriages, can only claim share in the self-acquired properties of parents, but cannot claim inheritance in ancestral coparcenary properties. It has also been-held that the illegitimate children born out of live-in relationship and during the subsistence of a valid marriage, not entitled to inheritance of coparcenary property.

32. In Revenasiddappa v. Mallikarjun MANU/SC/0299/2011: (2011) 11 SCC 1: LNIND 2011 SC 346, a two Judge Bench of the Supreme Court, has held that when the amended Act, removed the stigma of illegitimacy from the children of void or voidable marriages and having regard to the concept of legitimacy of the child, with the changing socio-economic norms and values and having regard to the equity of the statute and Articles 39(f) and 300A of the Constitution of India, has referred the issue, to a larger Bench of the Apex Court, as to whether, such children born of void or voidable marriages are also entitled to rights in the ancestral properties also.

33. In D. Nagamani and Another v. The Chief Educational Officer, Coimbatore and Others MANU/TN/3770/2009: 2010 (1) LW 724 : LNIND 2009 Mad 3947:(2009)8 MLJ 1371, on the facts and evidence, this Court, at paragraphs 18 to 21, held as follows:

18. In the case of Jinia Keotin v. Kumar Sitaram Manjhi (supra), the Supreme Court while considering legitimacy of a child under Section 16(3) of the Act has dealt with the scope of the provision which is as follows:

4. The Hindu Marriage Act underwent important changes by 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 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 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 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 properties of the parents only."

19. As for the legitimacy of the son, the second appellant born to the first appellant and Damodharan, no law has been formulated so far as to legitimacy of a child which was born earlier to the lawful marriage or void marriage. In this case, there is no evidence for long cohabitation.

20. Even though any presumption is drawn without conceding if a child was born much earlier to their continuous cohabitation, the legitimacy of the child could not relate back to the earlier point of time before they started cohabitation. Section 16 of the Hindu Marriage Act provides as to legitimacy of children of void and voidable marriages. In order to consider whether a child is an illegitimate child, it should have born out of void or voidable marriage. No law is prevailing as to the legitimacy of the child, born earlier to such marriage. In the case on hand, it is admitted by the first appellant that second appellant was born in 1972, that she married Damodharan in 1975 and their marriage was registered in the year 1989. As already indicated at the threshold, Exhibit A-1 marriage extract has no legal enforceability. Hence, legitimacy of the second appellant could not be decided and he cannot be made competent to get any benefit from his father's estate, even under Section 16 of the Hindu Marriage Act, 1955.

21. In order to acquire rights under the above said provisions, there should have been a marriage even it might have been an invalid marriage. When there was no marriage and the child was born much earlier to the marriage, the question of legitimacy does not arise and such child cannot be even held to be illegitimate for the purpose of inheritance of his fathers estate.

34. In Palsamy Nattanmai v. Vadamalai Ayee 1997 (3) LW 17 : LNIND 1997 Mad 1389, relied on in the lower appellate Coin, there was no dispute that A and B were born to X and Y in concubinage On evaluation of evidence, this Court held that only if ft is proved that there was a marriage between X and Y and if for ay reason, the marriage was held to be invalid, then alone, the off springs of such marriage under Section 16B of the Hindu Marriage Act, 1955 can be held to be the heirs to the father. However, in the above reported case, the basis for such contention was not laid. In other words, it was not established that there was any marriage, between X and Y. On the other hand, X has himself described Y as only his concubine.

35. Reverting back to the case on hand, it is the admitted case of the plaintiff that he married Muthulakshmi (1st wife) on 9.9.1984 and for some family problems, he filed a petition for divorce in F.C.O.P. No. 1389 of 1994. During the subsistence of the marriage, he seemed to have developed illicit intimacy with one K. Mohanambal and begotten a child on 28.9.1993, i.e., even before the filing the Divorce Petition. He was a Head Constable in the Railway Protection Force and possibly, apprehending disciplinary action for his illicit relationship, with another lady, K. Mohanambal, during the subsistence of the 1st marriage, with Muthulakshmi, he had not disclosed the above fact to the department. The plaintiff in his evidence, has stated as follows:

I have married one K. Mohanambal on 2.2.1996, after I got divorce from my first wife Muthulakshmi. The marriage was registered by the Marriage Registering Authority, Anna Nagar, Chennai-600 040. Though the marriage with K. Mohanambal was solemnized on 2.2.1996, I have got a son by name T. Mathiarasan for me and K. Mohambal on 28.9.1993 before the marriage was registered on 2.2.1996.

36. No where, in the plaint averments or in his evidence, the plaintiff has pleaded or deposed that there was any marriage between himself and K. Mohanambal, as per Section 5 of the Hindu Marriage Act, prior to the birth of T. Mathiarasan. P.W.2, Mohanamhal, in her evidence, has also deposed as follows:

I am the legally wedded wife of R. Thangaraja, the plaintiff herein. I got married to him on 2.2.1996 in the Sub Register's office at Anna Nagar, Chennai 600 040. Before my marriage with R. Thangaraja, my son, T. Mathiarasan was born on 28.9.1993 at Government. Women and Children Hospital, Egmore, Chennai-8 to me and R. Thangaraja. The Corporation of Madras has issued the birth certificate of T. Mathiarasan on 25.8.1994.

2. I further state that 1 am aware that my husband, R. Thangaraja has sought for divorce from his first wife P. Muthulakshmi and got a decree of divorce from the learned IInd Additional Family Court at Madras on 6.7.1995 in F.C.O.P. No. 1389 of 1994. After the marriage with R. Thangaraja, I am leading a happy matrimonial life. My daughter T. Mathi Bharathi was born on 25.8.1999.

In her cross-examination, she has also categorically deposed that after only 29 months of birth of T. Mathiarasan, she married the plaintiff.

37. Though the learned counsel for the plaintiff has contended that P.Ws.1 and 2 were living as husband and wife for a long time, which has been admitted by both parties, which gives rise to a presumption of marriage under Section 114 of the Evidence Act and consequently, legitimacy of the child born from the presumed marriage, should not be denied and further contended that they have subsequently registered their marriage on 2.2.1996, after a decree of divorce was granted by the learned Second Additional Family Court, Chennai, in F.C.O.P. No. 1389 of 1994, dated 6.7.1995, this Court is not inclined to subscribe to his contentions, for the reason that though legitimacy is a matter of status, for the innocent child, but it is well settled that under Section 16 of the Hindu Marriage Act, legitimacy of the child is determined on the basis of marriage, whether valid or void or voidable.

38. The object of Section 16 of the Hindu Marriage Act, 1955, is to protect legitimacy of the children born of void or voidable marriages. It could be seen from the line of decisions of the Division Bench judgments in K. Munuswami Gounder v. M. Govindaraju (supra), Singaram v. Subramaniam (supra) and D. Nagamani and Another v. The Chief Educational Officer, Coimbatore and Others (supra). Section 16 of the Hindu Marriage Act, 1955 does not deal with the rights of children born through concubinage, but deals with legitimacy of the children born through void or voidable marriages.

39. To claim legitimacy under Section 16(1) of the Act, the existence of a marriage is Sine qua non. As held by the Division Bench in G. Sekar v. Geetha (supra), mere assertion, even in the pleadings is not sufficient. Earlier, under the unamended Act. the requirements for applicability of Section 16 of the Act (as originally enacted), which protected legitimacy, were (i) there was a marriage; (ii) the marriage was void under Section 11 or voidable under Section 12, (iii) there was a decree annulling such marriage either under Section 11 or under Section 12, and (iv) the child was begotten or conceived before the decree was made. As the rule of legitimacy was mainly depended upon the marriage (void or voidable), being annulled by a decree of annulment and that the child bom of such marriage, would continue to be illegitimate, if the decree of annulment was not passed, which would always be the case, if the parties had not approached the Court, for nullity, the enactment came to be made to eliminate the discrimination between the two groups of children, similarly placed, but treated differently, on account of decree of nullity. Thus, as per the unamended provision of Section 16 of the Act laid down a rule that, unless a decree of nullity was granted in respect of a marriage, which was void, the legitimacy of the children born of such marriage would not be protected and the legislature, realizing the discrimination between the above said two classes of illegitimate children, similarly circumstanced, but differentiated by the conduct of the parties between one who had approached the Court to seek for nullity of marriage and the other, who had not made an amendment to Section 16, which states that notwithstanding that, a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, (68 of 1976) and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or lot the marriage is held to be void otherwise than on a petition under this Act.

40. As per sub-section 2 of Section 16 of the Act, where a decree of nullity is granted in respect, of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage, if on the date of the decree, it had been dissolved instead of being annulled, shall be deemed to be their legitimate child, notwithstanding the decree of nullity. Reading of the provisions and the decisions stated supra, makes it clear that as per Section 16(1) of the Act, any child bom of void or voidable marriage, would have been legitimate, if the marriage had been valid, irrespective of the fact that, it is null and void under Section 11 and whether such child is born before or after the commencement, of the Marriage Laws and whether or not a decree of nullity is granted in respect of that marriage under the Hindu Marriage Act, 1955 and whether or not the marriage is held to be void, otherwise than on a petition under the Act.

41. Though the learned counsel for the plaintiff/respondent contended that the parents of T. Mathiarasan have admitted the parentage of the child and also registered their marriage in 1996, by registering the same, before the Marriage Authority, their acknowledgment would not clothe legitimacy to the child, T. Mathiarasan, as per Section 16 of the Hindu Marriage Act, 1955. The Registration of the marriage between the parties on 2.2.1996, after the divorce, is valid in law. It is not void or voidable. This Court is of the view that the concept of acknowledgment of paternity, which is available in Mohammedan Law, cannot be imported to Hindus, who are governed by their own personal laws, viz., Hindu Marriage Act, 1955. It is well known that the Doctrine of acknowledgment is based on the presumption of lawful union between the parties of the acknowledged child. In Muthayya v. Kamu,MANU/TN/0367/1980: (1981) 1 MLJ 107, this Court held that the above said doctrine is not applicable, where the lawful union between the parents of the child is not possible, as in the case of sexual intercourse or due to adulterous connection. After the enactment of Hindu Marriage Act, 1955, second marriage is prohibited and it is void and after the amendment to Section 16(1) of the Hindu Marriage Act, notwithstanding the marriage between the parents of the child, is void, still the child can be treated as legitimate, insofar as the right to inherit the properties of his father, under Section 16(3) of the Hindu Marriage Act. Therefore, to attract Section 16 of the Act, there should be a marriage.

42. Admittedly, in the case on hand, both the plaintiff and his second wife, Mohambal have categorically deposed that there was no marriage, when the child was born. As rightly observed by this Court in D. Nagamani and Another v. The Chief Educational Officer, Coimbatore and Others (supra), there is no law prevailing as to the legitimacy of the child born earlier to such marriage and the question of legitimacy does not arise in the case of such child, even to hold as illegitimate for the purpose of inheriting his father's property.

43. In Sham Lal v. Sanjeev Kumar MANU/SC/0576/2009 : (2009) 12 SCC 454, the Supreme Court held that it is undesirable to enquire into the paternity of the child, whose parents have access to each other. Section 112 of the Evidence Act, is based on presumption of public morality and public policy. It is also the settled principle of law that odiosa et inhonesta non sunt in lege praesumenda (nothing odious or dishonorable will be presumed by the law). Section 112 reproduces the rule of English Law that it is undesirable to enquire into the paternity of the child when the mother is a married woman and the husband had access to her. The law presumes against vice and immorality. In a civilised society it is imperative to presume the legitimacy of a child born during the continuation of a valid marriage and whose parents had "access" to each other. But in the case on hand, even as per the evidence of the respondent/plaintiff and K. Mohanambal, there was no marriage at all, on the date of birth of the child and therefore, this Court is of the view that even Section 112 of the Evidence Act, is not applicable to the facts of this case.

44. For applicability of Section 16 of the Hindu Marriage Act, a child must have been born, after a marriage between his father and mother, whether void or voidable. The law prevailing in England on legitimacy of the child and other British Colonies is on the principle, legitimatio per matrimonium subsequens i.e., legitimising by subsequent marriage of his parents, is not applicable to Hindus, who are governed by their own personal law.

45. Though the definition of the word "legitimate child" in P. Ramanatha Iyer's Law Lexicon States, as one bom in lawful wedlock or born before the marriage of its parents and afterwards marry and which receives recognition of its father, as one of such children is just as legitimate before the law, as the other, in the instant case, the fact remains that the child was born during the subsistence of a valid marriage with Muthulakshmi. The word "Legitimate" as per Webster's Dictionary, means the child lawfully begotten or born in lawful weldock.

46. The legal fiction created by the legislature is that children, though illegitimate, shall nevertheless, be treated as legitimate, notwithstanding that the marriage was void or voidable. The legal fiction specifically intended by the legislature to bring about legitimacy on the children is intended to bring about a social reform. Extension of the benefit of the legislation to children born out of any relationship, during the subsistence of the first marriage, without there being any marriage, between the parties, at the time of the birth of child, would in my view, be against the sanctity attached to marriage, which according to Hindu Law is a holy union, which is not a contract. The intention of the parties to marry subsequently and give recognition to their son, born before their marriage is different from applying the legal fiction, created by the enactment. The law enacted with the object of eliminating the discrimination between two grounds of illegitimate children, has not dealt with the children born out of illicit relationship.

47. Though live-in relationship as husband and wife is now considered and recognised by Courts, where presumption of marriage can also be raised, on account of leading a life of husband and wife, for a long number of years, there is no legislation, legitimizing the birth of child born before marriage, by subsequent marriage and it is for the legislature to consider standards of living and whether it would being about social reforms, affecting the sanctity attached to the marriage.

48. In Jinia Keotin v. Kumar Sitaram Manjhi (supra), while considering the interpretation to Section 16 of the Hindu Marriage Act, 1955 and having regard to the Court's limited power, at Paragraph 5, the Supreme Court held that under the guise of interpretation, the Court cannot relegislate on the subject against the will expressed in the enactment. As stated supra, the intention of the legislature in engrafting a rule of legal fiction in ordaining the children, though illegitimate, to be treated as legitimate, is confined only to a case, where there is a void or voidable marriage and not in the case, where there is no marriage at all. It is also settled legal position, while interpreting a provision, the Court cannot relegislate on the subject against the will expressed in the enactment. In the light of the discussion and decisions stated supra, this Court, on the facts and circumstances of this case, is of the view that both the Courts below have erred in applying Section 16(1) of the Hindu Marriage Act, in declaring the legitimacy of the child born to the plaintiff and K. Mohanambal, not through a wedlock and during the subsistence of the first marriage of the plaintiff. Both the substantial questions of law are decided in favour of the appellant. The judgments and decrees of the lower Courts are set aside and the second appeal is allowed. No costs.

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