Supreme Court in Jinia Keotin and others -vs- Kumar Sitaram Manjhi and others, (2003) 1 SCC 730 has been held that in view of the provisions of section 16(3) of the hindu   succession Act, the children born of void or voidable marriage are not entitled to claim inheritance in ancestral co-parcenary property but entitled to claim inheritance in property of parents 

2) your disabled illegitimate son would be entitled to family pension 

 


 

 

 

 

 HIGH COURT OF CHATTISGARH AT BILASPUR 

 WRIT PETITION No.2435 OF 2009

 Smt. Vijayshree Sharma

 ...Petitioners

 Vs

 Union of India and others

 ...Respondents

WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA ! Mr. H.S.Ahluwalia, counsel for the Petitioner ^ Mrs. Fouzia Mirza, counsel for respondent no.1, 3, 4 & 5 Mrs. Hamida Siddiqui, counsel for respondent no.6. HONBLE I.M. QUDDUSI,HONBLE N.K. AGRAWAL, JJ Dated:29/06/2010 : Judgment (29.06.2010) Per I.M. QUDDUSI

1. This writ petition has been filed against the impugned order dated 23rd January, 2009 passed by the Central Administrative Tribunal, Jabalpur Bench, Circuit Court at Bilaspur, in O.A.No.420/2003 whereby the original application filed by respondent no.6 Smt. Jayashree Sharma for grant of family pension to her has been allowed.

2. Brief facts of the case are as under:

(i) Deceased R.N. Sharma was working as News Editor in the respondent Department. He took voluntary retirement on 16th Sept. 2002 due to illness and thereafter within a few days he died on 13.11.2002. Respondent no.6 has filed Original Application before the Tribunal on the ground that she was legally wedded wife of late R.N. Sharma, out of the wedlock two children were born and thereafter, he deserted her and started living separately with another woman. She further stated that in the year 2001, R.N. Sharma filed a divorce petition seeking divorce from her in the court of 5th Addl. District Judge, Raipur, under section 13 of the Hindu Marriage Act. During the pendency of the divorce petition, he expired on 13.11.2002 and the said petition has become infructuous. A legal notice has been issued by her to the concerned department for granting her family pension and other retrial dues of late R.N. Sharma. The official respondents replied that the pensionary benefits of the deceased employee have already been paid to petitioner Vijayshee Sharma and necessary PPO has also been issued in her favour.

(ii) According to petitioner Vijayshree Sharma, on 24.05.1971 she got married with late R.N. Sharma and after marriage both were residing together and out of wedlock they had two children namely Akash Sharma (son) and daughter Ku. Priyanka Sharma. Late R.N. Sharma has submitted his pension papers for grant of pensionary benefits. He also enclosed nomination Form No.3 under Rule 54(12) of the Central Civil Services (Pension) Rules showing the petitioner as his wife. After death of her husband, the department disbursed the family pension to her, being the legally wedded wife. Having come to know about the release of family pension to petitioner Vijayshree, respondent no.6 Jayshree filed O.A. bearing No. 420/2003 in which the petitioner was impleaded as party/respondent no.5. The Tribunal by order dated 23.01.2009 allowed the original application of respondent no.6 and directed the respondents- department to grant family pension in favour of respondent no.6.

3. Mr. H.S. Ahluwalia, learned counsel for the petitioner submits that late R.N. Sharma executed a registered will dated 02.03.2002 whereby moveable and immoveable properties including bank account have been bequeathed in favour of petitioner as successor, therefore, the petitioner is entitled for the pensionary benefits being legally wedded wife.

4. Mrs. Hamida Siddiqui, learned counsel for respondent no.6 on the other hand submits that the petitioner even if nominated by the deceased could not claim status of a legally wedded wife during subsistence of earlier marriage with respondent no.6. She placed reliance on a decision in Rameshwari Devi Vs. State of Bihar reported in (2000) 2 SCC 431 and Vidyadhari and others Vs. Sukharna Bai and others AIR SCW 910 and emphasized that the denial of claim to legally wedded wife to the exclusion not only of the nominee of deceased but also to the exclusion of his legitimate legal heirs would be illegal. Respondent no.6 being legally wedded wife is also one of the legal heirs under the Hindu Marriage Act/Succession Act and therefore she is entitled to pension and other terminal benefits.

5. The learned Tribunal, after considering the entire material on record, has mainly recorded the following findings in his order vide paras 11 &

12.

(i) That the Will dated 02 March 2002 executed by deceased R.N. Sharma in favour of petitioner Vijayshree Sharma nowhere depicted the petitioner as his wife much less than legally wedded wife. On the other hand, respondent no.6 Jayshree Sharma was referred as wife with whom he had two issues and the deceased and respondent no.6 were living separately for the past 27 years as they had no cordial relations.

(ii) That deceased R.N. Sharma filed a divorce petition in the year 2001 before the Court of 5th Addl. District Judge, Raipur, under the Hindu Marriage Act seeking divorce from respondent no.6 Jayshree Sharma and after death of R.N. Sharma, the said proceedings were dismissed as infructuous meaning thereby that the marriage of deceased with Jayshree Sharma subsisted as divorce proceedings could not be finalized during his lifetime and Jayshree Sharma was the legally wedded wife and the children born to her from R.N. Singh are legitimate.

(iii) In view of the above, mere submission of details of family members by deceased R.N. Singh describing the petitioner Vijayshree Sharma as his wife on 20th & 25th Sept.2002 after he stood voluntarily retired will not erase or undermine the mandate of providing details of family when he entered the Government Service.

The learned Tribunal on the basis of the above findings allowed the O.A. filed by respondent no.6 and directed the respondent authorities to grant family pension in favour of respondent no.6 w.e.f. 13.11.2002 alongwith arrears within the stipulated period.

6. A perusal of the will dated 02.03.2002 shows that the marriage of deceased was performed with respondent no.6 Jayshree and two children were born to her from R.N. Singh, but to due lack of cordial relations between them, they were living separately for a long time. Therefore, the fact which emerged from the said Will that respondent no.6 namely Smt. Jaishree Sharma was legally wedded wife of deceased late R.N. Sharma cannot be denied. Further it is also matter of record that R.N. Sharma himself filed divorce petition which was pending seeking divorce from Jayshree, but during the pendency of that petition, R.N. Sharma died and as such it cannot be said that Jayshree is a divorcee for all purposes. She is legal widow of late R.N. Sharma. Therefore, there is no doubt that Jayshree and her two children are entitled to get family pension. Besides this, petitioner Vajayshree Sharma is also having two children but they are illegitimate children of the deceased as she is not legally wedded wife of the deceased. Under the Hindu Law, second marriage is void and therefore even if late R.N.Sharma at any point of time had performed second marriage with petitioner Vijayshree Sharma that is void in the eye of law. Hence, it cannot be said that the petitioner is legally wedded wife or widow of R.N. Sharma. However, children born out of void or voidable marriage, according to the Hindu Marriage Act, 1956 were legitimate though the marriage itself was void.

7. So far as entitlement of the illegitimate children is concerned, section 16 of Hindu Marriage Act, 1956 is relevant here which is quoted below:

16. Legitimacy of children of void and voidable marriages.-(1) Notwithstanding that 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 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.

8. The point as to whether illegitimate children are entitled to get share in parents property came up for consideration before the Supreme Court in Jinia Keotin and others -vs- Kumar Sitaram Manjhi and others, (2003) 1 SCC 730 wherein it has been held that in view of the provisions of section 16(3) of the Act, the children born of void or voidable marriage are not entitled to claim inheritance in ancestral co-parcenary property but entitled to claim inheritance in property of parents (See Placitam).

9. Therefore, we are of the opinion that Jayshree Sharma and her two children being legal widow and legitimate children of the deceased R.N. Sharma as also the two children of Vijayshree (all five in total) are entitled to get the family pension in accordance with the rules made for payment of Family Pension and Gratuity to the legal heirs of the deceased. Therefore, we dispose of this writ petition modifying the impugned order passed by the Tribunal and direct that the children legitimate and illegitimate both as well as the legal widow of the deceased late R.N. Sharma namely Smt. Jayashree, respondent no.6 herein, shall be entitled to get family pension and gratuity and as such the official respondents are directed to grant family pension in their favour. This direction shall be carried out without further delay preferably within 3 months from the date of production of certified copy of this order.

 Judge Judge

Please check your declaration form filled during service , in one of the columns nominee name has to be filled and in another column name of the family members with age has to be filled, what you have filled there, the pension shall be disburse accordingly, if the name of the disabled son appear there then he is entitled otherwise not, if you wants to add the name if not appears then move an application for the same with the proof to the prescribed authority.

Dear Client,

Illegitimate child can claim father’s property and other benefits like a legitimate child and an employee/pensioner/family pensioner may at anytime make a request to the Appointing Authority for advance approval to the grant of family pension for life to a permanently disabled child.

Dear Client,

As per law, your disabled son is liable to get person from you.

If you have married to the second wife without divorce it will be difficult for the son to get facilities. But the child can raise a ground of illegitimate child and get the said facility by writ petition in court

1. There is no bar in the eye of law to claim pension for illegitimate son.

2. However it may differ with the service rules of the particular empoloyer.

3. So refer to the service Rules if there is any such clause.

4. otherwise claim the pension and in default file writ petition. 

Children of government servants from illegal marriage can claim share of pension and other benefits. 

If you are alive you wil get pension. Your wifevor children can't.

Disability pension if given  to children can be given to your son.

Family pension can be granted only when the original person who was in service dies.

Dear Sir,

During your lifetime your disabled son may not get any pension from your department but he can get family pension after your death.

Further he is eligible for disabled pensions as being sanctioned by state and central governments.

Yes your disabled son will be eligible for family pension after you.

You just have to mention his name in the dependant list in your department.

The family pension will be given to the wife and not to all the membrs of the family.

Whether you registered the marriage or not, the evidence for marriage is the solemnisation of the same.

However please be aware that the second marriage contracted during the subsistence of an earlier marriage is actually null and void and illegal in the eyes of law.

However now since you have registered your marriage, you can apply for the update of your service records including pension details and the particulars of the nominee eligible for family pension.

Your son born out of your second marriage is a legitimate child even if you have not registered your marriage or not even married your second wife.

The family pension will be given to your family only after your lifetime and not during your lifetime.