IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 MACA.No. 1324 of 2004() ----------------------- OP(MV).1073/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANTS ------------------------------ 1. JANE ANTONY, WIFE OF ANTONY, OLICKAL HOUSE, PLASSENAL P.O., PALA. 2. ROSHEN ANTONY (MINOR AGED 3 YEARS) DO. DO. 3. LISA ANTONY (MINOR AGED 2 YEARS) DO. DO. 4. ALEYKUTTY ITTYAVIRAH, DO. DO. 5. ITTYAVIRAH, DO. DO. (APPELLANTS 2 AND 3 ARE REPRESENTED BY THE FIRST APPELLANT MOTHER AND NATURAL GUARDIAN AS THEIR NEXT FRIEND THEY BEING MINORS). BY ADV. SRI.P.R.VENKETESH RESPONDENT: --------------- 1. V.M.SIYATH, VELLOOPARAMBIL, ERATTUPETTA P.O. 2. K.K.MOHAMMED IBRAHIM, KUNNAKATTU HOUSE, NADACKAL, ERATTUPETTA P.O. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, KANJIRAPALLY. 4. SOPHIA MARY ANTONY, CHARALAYIL HOUSE, MUNDAKKAL P.O., LALAM VILLAGE, PALA. 5. SONA NORU ANTONY, DO. DO. DO. ADV. SRI.K.G.ANIL BABU FOR R1 SRI.CYRIAC KURIAN FOR R1 SRI.R.D.SHENOY (SR.) FOR R4 & R5 SRI.S.VINOD BHAT FOR R4 & R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N. RAMACHANDRAN NAIR C.R & HARUN-UL-RASHID, JJ. --------------------------------------------------------- M.A.C.A.NO. 1324 OF 2004 --------------------------------------------------------- Dated this the 25th day of September, 2008 JUDGMENT Harun-Ul-Rashid, J. Right of succession of illegitimate children born to Christian parents is the bone of contention cropped up for consideration in this case. While considering this, the following issues arise for consideration. (i) Whether the requirement of a central legislation recognising the right of illegitimate children of all classes irrespective of their religion to inherit the property of their parents is the need of the hour? (ii)Whether illegitimate children born to Christian father and mother are entitled to inherit the property of their father under the Indian Succession Act? (iii) whether children born to parents living as husband and wife during the subsistence of the father's first marriage are legitimate or illegitimate in the eye of law. 2. The appeal is directed against the award passed by the Motor Accidents Claims Tribunal, Pala in O.P.(MV) Nos.1073 of 1995 and 1270 of 1995. The case of the appellants in brief is as follows: The deceased Dr.Antony was a 36 year old doctor who died in a M.A.C.A. No. 1324 of 2004 -2- motor accident on 3.5.1993 while studying for M.S Course in the Medical College, Kottayam. The motor bike in which the deceased was travelling as pillion rider along with his relative was knocked down by a tempo van driven by the 1st respondent. The deceased sustained injuries and was admitted in the Medical College Hospital, Kottayam where he later died. The first appellant, who is also a Doctor by profession is the widow of the deceased, appellants 2 and 3 are her children born to the deceased and appellants 4 and 5 are the parents of the deceased. In the claim petition filed by the appellants before the Tribunal, respondents 4 and 5 who are the children of the deceased and one Mrs. Mary Antony got impleaded as additional respondents. Even though RW1( Mrs. Mary Antony) claimed to be married to the deceased and respondents 4 and 5 are the children born in that wedlock, the Tribunal held that since the first marriage was subsisting there could not be another valid marriage by deceased with RW1. However, respondents 4 and 5, the children born to the deceased through RW1, were granted compensation along with the appellants herein. Out of the total compensation awarded, Rs.50,000/- each was given to the parents of the deceased who are appellants 4 and 5 herein and the balance was apportioned among appellants 1 to 3 and M.A.C.A. No. 1324 of 2004 -3- respondents 4 and 5 herein equally. It is against this award, appeal is filed for enhancement of compensation and also for cancelling the award passed in favour of respondents 4 and 5. 3. We have heard counsel appearing for the parties and have gone through the award. According to respondents 4 and 5, Dr. O.I. Antony married their mother as per an agreement dated 23.1.1990 and they were born in that wedlock. The 4th respondent was born on 8.11.1990 and the 5th respondent was born on 16.9.1993 after the death of Dr.Antony. To discharge the burden of proving that respondents 4 and 5 are the children of the deceased Antony, RWs.1 to 3 were examined. RW.1 testified that on 28.5.1989 there was an advertisement in the matrimonial column of the Indian Express inviting proposals from suitable bride for the deceased to which her mother responded. Ext.B2 is the Indian Express Newspaper and Ext.B2(a) is the relevant publication. According to RW.1, she was a Lieutnant working in the Nursing Department of the Military during the relevant period and during January, 1990, she met the deceased Antony at Kottayam and they decided to marry and consequently registered a document at the Sub Registry Office, Thrissur on 23.1.1990. Ext.B8 is the said marriage document. In Ext.B8, it is stipulated that they have decided to live together as husband and M.A.C.A. No. 1324 of 2004 -4- wife by virtue of the said agreement and that the marriage will be solemnised as per the religious formalities and customs. It is also testified by RW.1 that herself and deceased Antony lived as husband and wife at her residence at Pala for about 1 ½ months. She deposed that she became pregnant . Later she was transferred to Binnaguari at West Bengal and that the deceased Antony visited her thrice during that time. She also stated that both of them worked together at Pushapagiri Hospital, Kerala. The first child was born at Cochin Naval Base Hospital . RW.1 further stated that Baptism of the 4th respondent was performed on 27.12.1990 and that Ext.B10 is the baptism certificate of the 4th respondent issued from Uzhavoor Forane Church in which the name of the father of the child is shown as Antony and that of the mother as Mary. Ext.B11 is the birth certificate of the 4th respondent in which also her name and that of the deceased are shown as the parents of the child. RW.1 further deposed that when Dr. Antony died, she was pregnant and gave birth to the second child on 16.9.1993. RW.2 is the sister of RW.1. She also deposed that RW1's marriage was performed on 23.1.1990 and she was residing with the deceased. She further stated that the deceased had been paying maintenance to RW.1. RW.3 is the Home Nurse who was deputed by the deceased Antony to nurse M.A.C.A. No. 1324 of 2004 -5- RW.1 after the birth of the first child. She deposed that she went along with deceased Antony to the residence of RW.1 and stayed there for about ten months. According to RW.3, her remuneration was paid by deceased Antony. In the birth certificate of the second child, the name of the father is shown as Antony and that of the mother as Mary. Ext.B13 series are the photographs of deceased Antony, RW.1 and their first child taken during the birthday celebration of the first child. Ext.B14 series are the negatives of the photographs. The oral and documentary evidence would prove that respondents 4 and 5 were born to RW.1 through deceased Antony. 4. One of the questions to be considered is regarding the entitlement of compensation for respondents 4 and 5 on account of the death of the deceased who is their father. Even though, respondents 4 and 5 are the children of RW.1 in her relationship with the deceased, the case of the 1st wife is that there is no valid marriage between the deceased and RW1 and therefore the claim is not maintainable. Counsel for respondents 4 and 5 contended that the deceased contracted marriage with RW1 which is evidenced by Ext.B8 document and the fact that the deceased lived with RW.1 and two children were born in that relationship who are M.A.C.A. No. 1324 of 2004 -6- respondents 4 and 5 stands proved. The evidence of RW1 and the documents produced by her established the fact that the deceased and herself lived together on the understanding that they will eventually get married after getting divorce from the 1st appellant. The Tribunal, based on the evidence, concluded that the case of RW.1 about her living with the deceased as his wife for some time and that she got two children namely respondents 4 and 5 in that relationship are true. On going through the documents and after hearing the parties ,we do not find any ground to deviate from the findings of the Tribunal that though there was no valid marriage between the deceased and RW1, they lived together for quite some time and two children were born in that relationship namely respondents 4 and 5 . 5. The next question to be considered is whether respondents 4 and 5 though children of the deceased, are entitled to get compensation as his children. Counsel for the appellants relied on the decision of this Court in Shyamalavalli Amma Vs. Kavalam Jisha reported in 2007 (3) K.L.T. 270 and in Karthi Pankajakshy Vs.Lalitha Sujatha reported in 1990 (1) K.L.T. 248 and contended that the maintainability of the claim has to be considered only with reference to the Succession law and M.A.C.A. No. 1324 of 2004 -7- respondents 4 and 5 being illegitimate children are not eligible to succeed to the estate of deceased Dr. Antony nor to file the claim. 6. Counsel appearing for respondents 4 and 5 referred to the decisions of this Court and the Supreme court which the Tribunal has relied on while passing the award and contended that the word 'legal heirs' include illegitimate children also. A division Bench of this Court in the decision in Unni Vs. Baby John reported in 2008 (2) KLT 78 held that the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") is maintainable only when it is filed by the legal representatives. The Supreme Court in the decision in Gujarat State Road Transport Corporation, Ahmadabad Vs. Raman Bhai Prabhat Bhai and another reported in 1987 ACJ 561 held that a wide meaning should be given to the word legal representative referred to in Section 166 of the Act and in appropriate cases even foster children will be covered by the term 'legal representative'. We have therefore examined the entitlement of compensation for respondents 4 & 5 with reference to the provisions of the Indian Succession Act 1925 , which is the law of succession applicable to the appellants. Counsel for the appellants relied on Section 33 (a) of the Indian Succession Act and contended that the first appellant M.A.C.A. No. 1324 of 2004 -8- being the widow of the deceased is entitled to one- third of the compensation and the remaining is to be apportioned among the lineal descendants who are the children of the deceased born in the first appellant namely appellants 2 and 3 herein. However, counsel for respondents 4 and 5 referred to Sections 36 & 37 of the Indian Succession Act and contended that respondents 4 and 5 being the children of the deceased are also entitled to succeed to the estate of the deceased. We are of the view that Section 36 and Section 37 of the Indian Succession Act should be read with Section 33 (a) and the combined effect is that one-third of the estate of the deceased have to be first allocated to the widow and the balance should be distributed among lineal descendants namely the children. Section 36 provides that share of the estate of the deceased among lineal descendants should be in accordance with Sections 37 to 40 of the Indian Succession Act. Even though counsel for the appellants relied on Sections 57 and 21 of the Indian Divorce Act 1869 and contended that only legitimate children are entitled to succeed to the estate except in the specific case of exception under Section 21 of the said Act, counsel for respondents 4 and 5 referred to Section 8 of the Indian Succession Act and contended that illegitimate children has a recognised M.A.C.A. No. 1324 of 2004 -9- status under the Indian Succession Act. He also pointed out that there is nothing in the Indian Succession Act barring illegitimate children from succeeding to the estate of the deceased. 7. The word "legitimate" when used with reference to a child, means lawfully begotten, born in a wedlock. In a number of decisions, legitimate is termed as lawful, real or genuine. 8. In common law, the legal significance of the word "children" if used in a Will is legal children and it will not include illegitimate children unless the testator intends to include them. Under the marriage laws where a marriage has been declared void abinitio, the child of such marriage is for all purposes a legitimate child of the parents subject to conditions stated therein. 9. Advanced Law Lexicon Vol.II defines legitimate child as one born in lawful wedlock or born before the marriage of its parties, who afterwards marry and which receives the recognition of its father and one of such children is just as legitimate before the law as the other. 10. Illegitimacy is defined as being that which is contrary to law and it is said that the term usually is applied to children born out of M.A.C.A. No. 1324 of 2004 -10- lawful wedlock. Black's Law Dictionary 4th edition defines illegitimate child as that which is contrary to law; it is usually applied to children born outside lawful wedlock. 11. Whether the children born to RW.1 who lived with deceased Antony as man and wife are legitimate or not is a significant question to be decided in this case. In India the personal law of succession of Hindus, Christians and Muslims does not recognise children born outside wedlock as legitimate children. Among Christians and Hindus, a husband or wife cannot marry for a second time during the subsistence of the first marriage. For Muslims, their personal law permits polygamy. It simply means that the personal laws of the religions in this country recognises only children begotten in wedlock as legitimate children and they alone are entitled to succeed to the estate of their deceased father. Children born out of wedlock are always considered as illegitimate. It is relevant to refer to some of the provisions in the Divorce Act, 1869 and the Hindu Marriage Act, 1955. Section 21 of the Divorce Act reads as follows" "Children of annulled marriage:- Where a marriage is annulled on the ground that a former husband or wife was living, and it is adjudged that the subsequent marriage was contracted in good faith and with full belief of the parties that the former husband or wife was dead, or when a marriage is annulled on the ground of M.A.C.A. No. 1324 of 2004 -11- insanity, children begotten before the decree is made, shall be specified in the decree, and shall be entitled to succeed, in the same manner as legitimate children, to the estate of the parent who at the time of the marriage was competent to contract." Section 18 read with Section 19 of the Divorce Act confer jurisdiction on the court to declare a marriage null and void for the reasons stated therein. Section 21 of the Divorce Act extracted above confer status of legitimacy only to a limited class of children stated therein who are begotten before the decree is made in an annulled marriage and shall be entitled to succeed to the estate of the parent who at the time of marriage was competent to contract, as legitimate children. Thus Section 21 does not confer such status even on all children begotten in all marriages subsequently declared null and void. 12. Section 12 of the Hindu Marriage Act enumerates the grounds to annul a marriage by a decree of nullity. Section 16 of the Hindu Marriage Act deals with legitimacy of children of void and voidable marriage. 13. Section 16 of the Act confers status on a limited class of children as legitimate and they are entitled to succeed to the estate M.A.C.A. No. 1324 of 2004 -12- of the deceased along with the children born in the wedlock. Under Hindu law an illegitimate child has never been considered as Nullius Filius. In some cases he has been considered to be a member of the family. More appropriately it can be said that in Hindu law the illegitimate child and putative father and natural mother have never been considered strangers to each other. From the texts and the judicial pronouncements, one thing is manifestly clear that an illegitimate son is recognized but with many riders and his rights are discriminatory in nature. A son born out of wedlock is also accepted and not totally thrown out but he had been given an inferior status and thus compassion along with discrimination exists. The Supreme Court in Gaurav Jain vs. Union of India (AIR 1997 SC 3021) while dealing with writ petition under Article 32 of the Constitution of India pertaining to the plight of prostitutes/fallen women and their progeny, spoke about the preamble of the Constitution and stated that it is an integral part of the Constitution and that pledges to secure socio-economic justice' to all its citizens with stated liberties, equality of status and of opportunity, assuring fraternity and dignity of the individual in a united and integrated Bharat and illegitimate children too are part of citizenry. It seems imperative to refer to the provisions pertaining to non- M.A.C.A. No. 1324 of 2004 -13- discrimination while dealing with the children as stipulated in the International Instruments. Universal Declaration of Human Rights Article 25(2) “ Motherhood and childhood are entitled to special care and assistance. All children whether born in or out of wedlock, shall enjoy the same social protection” Article 1 “ All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. 14. Muslim law prohibits inheritance to the property of the deceased by illegitimate children. One of the reasons for permitting polygamy is that under no circumstances the child born to them shall be illegitimate. The system of monogamy prevails in Hindu and Christian religion and members of such communities are expected to cohabit with their lawful spouses only. Polygamy is permitted among Muslims to prevent birth of illegitimate children as one of its pious objects. At present in our society a large number of illegal relationship prevails and the number of illegitimate children are increasing in alarming proportions in all communities. Several men and women live together without marrying and the society is not attributing immorality to them. The only exception is M.A.C.A. No. 1324 of 2004 -14- the life of prostitutes(unchaste women) and children born to them, who cannot claim father for them. 15. Section 125(1) Cr.P.C gives statutory recognition for right of maintenance of children both legitimate and illegitimate from their father. Since children have no role in their birth, illegitimate children are like any other children born to their parents. It is unfortunate that there is no law in this country to protect the interest of the illegitimate children. Their right to succeed to the estate of their deceased father or mother is not recognised by the administrators or Government, as the case may be by enacting legislation. The legitimate status of the children which depend 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 has to suffer a permanent set back in life and in the eyes of society by being treated as illegitimate. In other words, for the act of the parent, the innocent children should not be made to suffer. There are several cases in our country where man and woman live together as husband and wife, children are begotten to them and are taken care of by them. When the question arises as to whether such children can succeed to the estate of their deceased parents, M.A.C.A. No. 1324 of 2004 -15- there is no statute in this country enabling them to inherit the property of their parents. 16. Protection of women from Domestic Violence Act 2005 defines relationship as a relationship between two persons who live or have at any point of time lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. The modern enactment recognises and justifies to the limited extent the relationship in the nature of marriage is a cohabitation even without a lawful marriage. Married woman or a woman having relationship in the nature of marriage live and share the household are entitled to the legal protection along with others as per provisions envisaged in the above Act. Days are not far off where surrogate mother would get protection. 17. An illegitimate child not only suffer from a social stigma in every legal order but he is put to an unfortunate position as regards his rights of inheritance and support are concerned. Its sufferings or deprivations are based on the maxim, “Pater est quem nuptiae demonstrant.” 18. European convention for the Protection of Human Rights M.A.C.A. No. 1324 of 2004 -16- and Fundamental Freedoms, 1950-Article 14 “ The enjoyment of rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Declaration of the Rights of the Child-Principle I “ The child shall enjoy all the rights set forth in this Declaration. Every child without any exception whatsoever shall be entitled to these rights, without distinction or discrimination on account of race, colour, sex language, religion, political or other opinion, national or social origin, property, birth or other status, whether of himself or of his family” International Covenant on Economic, Social and Cultural rights, 1966 Article 2(2) “ states that the parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” International Covenant on Civil and Political Rights. Article 24(1) “ Every child shall have, without any discrimination as to race, colour, sex , language, religion, national or social origin, property, or birth, the right to such measures of protection as required by his status as a minor, on the part of his family, society M.A.C.A. No. 1324 of 2004 -17- and the state” Convention on the Rights of the Child Article 2(2) “ states that parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions.....” 19. Regarding adoption, prior to the Hindu Adoptions and Maintenance Act, 1956 only legitimate sons could be adopted but an illegitimate son could not be adopted. The Act now imposes no such restriction. Section 2(1) Explanation speaks of”any child legitimate or illegitimate” 20. In Hindu Minority and Guardianship Act, 1956, the distinction is maintained under Section 6(a) and (b). Various provisions are there in part III and part IV of the Constitution to safeguard the interests of the 'child' The word “child” is without any qualification attached to it. 21. In the United Kingdom and the United States as late as 1960's illegitimacy carried on a strong social stigma. In social and sometimes legal terms, the individual child so born was termed a “bastard.” 22.