IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 198 of 2000. Date of decision: 31.5.2010. Smt. Nirmala Devi ….. Appellant. Vs. Smt. Sheela Sharma & ors. ….. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Ms. Devyani Sharma, Advocate. For the Respondents : Mr. Inderjeet Singh Narwal, Advocate, for respondents No. 1 to 6. Kuldip Singh, Judge (Oral). The defendant No. 1 has come in appeal against judgement, decree dated 4.12.1999 passed by learned Addl. District Judge, Solan in Civil Appeal No. 40-S/13 of 1999 modifying judgement, decree dated 30.12.1998 passed by learned Senior Sub Judge, Solan in Civil Suit No. 15/1 of 1989. 2. The facts in brief are that respondents No. 1 to 5 had filed a suit against appellant and respondents No. 6 to 9 for declaration to the effect that respondent No.1 is the legally wedded wife of respondent No. 6 and respondents No. 2 to 5 are the legitimate sons and daughter of respondent No. 6 having born from the womb of respondent No. 1. It was also the case of respondents Whether the reporters of the local papers may be allowed to see the Judgment? …2… No. 1 to 5 that appellant is not the legally wedded wife of respondent No. 6 nor respondents No. 7 and 8 are son and daughter of respondent No. 6 rather they are the children of appellant from respondent No. 9. The respondents No. 1 to 5 have further prayed relief of permanent prohibitory injunction to the effect that appellant be restrained from claiming to be the wife of respondent No. 6 and similarly respondents No. 7 and 8 be restrained from claiming themselves to be the children of respondent No. 6. 3. The suit was contested by appellant, respondents No. 7, 8 and 9. They took preliminary objections of maintainability, cause of action, limitation, non-joinder of necessary parties and that respondents No. 1 to 5 are estopped from filing the suit due to their own act and conduct. They have denied the marriage of respondent No. 1 with respondent No. 6. They have projected the case that appellant and respondent No. 6 had solemnized lawful marriage and respondents No. 7 and 8 are their legitimate children. The suit was earlier dismissed on 17.5.1991 by the learned Senior Sub Judge. The matter was carried in appeal and the learned District Judge, Solan on 6.12.1991 accepted the appeal and set-aside the judgement, decree dated 17.5.1991. Thereafter RSA No. 207 of 1992 was filed in this court, which was decided on 31.3.1998. The judgements, decrees dated 6.12.1991 and 17.5.1991 were set-aside by this court and matter was remanded to the trial court. The respondent No. 6 after the remand of the case by this court had filed written statement and he admitted the case of respondents No. 1 to 5. He also took the …3… stand that he was forcibly married with appellant by respondent No. 9. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit in the present form is not maintainable? OPD. 2. Whether the suit is barred by limitation? OPD 3. Whether the suit is bad for mis-joinder of parties and if so to its effect? OPD. 4. Whether the plaintiff is estopped by her act, conduct and acquiescence from filing the suit as alleged? OPD. 5. Whether the plaintiff No. 1 is the legally wedded wife of the defendant No. 2 and plaintiffs No. 2 to 5 are their sons and daughters? OPP. 6. Whether the order of CJM, Solan dated 15.3.1985 in case titled Nirmala Devi Vs. Vidya Sagar and the compromise reached between them before Ld. Sessions Judge on 24.12.1987 are illegal, null and void and without any binding effect as alleged? OPP. 7. Whether the defendant No. 1 is the wife of defendant No. 2 and defendants No. 3 and 4 are their children as alleged? OPD. 8. Whether the plaintiffs are entitled for permanent injunction as prayed for? OPP. 9. Relief. 4. The issues No. 1 to 4, 6 and 7 were answered in negative and issues No. 5 and 8 in affirmative and the suit was decreed by the learned Senior Sub Judge on 30.12.1998 The operative part of judgement dated 30.12.1998 is as follows:- “In the light of my findings on the issues above, the suit of the plaintiff succeeds, and is accordingly decreed by granting a decree of declaration to the effect that the …4… plaintiff No. 1 is the legally wedded wife and remaining plaintiffs i.e. No. 2 to 5 are the children of defendant No. 2. The marriage of defendant No. 1 with that of defendant No. 2 as such is declared void, abinitio and accordingly defendant No. 1, 3 and 4 are thus restrained by way of permanent prohibitory injunction from proclaiming themselves to be the wife and children respectively of defendant No.2. However, in the peculiar circumstances of the case, the parties are left to bear their own costs. Let the decree sheet be prepared accordingly and the file be consigned to records.” 5. The matter was carried in appeal. The learned lower appellate court on 4.12.1999 has modified the judgement, decree dated 30.12.1998. The operative part of the judgement dated 4.12.1999 is as follows:- “In view of my findings on the point No. 1 above, the marriage of Nirmala Devi with Vidya Sagar is declared as void and respondent No. 1 is declared as legally wedded wife of Shri Vidya Sagar and respondents No. 2, 3, 4 and 5 are declared as legal sons and daughters of Shjri Vidya Sagar and appellants No. 2 namely Asha Devi and appellant No. 3 Narinder Kumar are declared as illegitimate children of Shri Vidya Sagar. The judgement and decree of the learned Trial Court are modified accordingly to this effect. However, in the peculiar circumstances of the case the parties are left to bear their own costs. Decree sheet be drawn accordingly. The record of the lower court alongwith a copy of this judgement be sent back.” 6. The defendant No. 1 has come in second appeal, which has been admitted on the following substantial question of law:- …5… Whether the respondents No. 7 and 8 can be held to be illegitimate children of Shri Vidya Sagar respondent No. 6 on the marriage between respondent No. 6 and the appellant having been declared as null and void under Section 5 of the Hindu Marriage Act, 1955? 7. I have heard Mrs. Devyani Sharma, learned counsel for the appellant and Mr. Inderjeet Narwal, learned counsel for respondents No. 1 to 6 and have also gone through the record. On behalf of the appellant, it has been submitted that learned lower appellate court has erred in declaring Asha Devi and Narinder Kumar as illegitimate children of Vidya Sagar. It has been submitted that in view of Section 16 of Hindu Marriage Act, 1955 (for short, the Act) and findings recorded by the two courts below, Asha Devi and Narinder Kumar are legitimate children of Vidya Sagar and not illegitimate children even in the teeth of findings that Vidya Sagar married with appellant Smt. Nirmala Devi during the subsistence of first marriage of Vidya Sagar with respondent No. 1 Smt. Sheela Sharma. 8. The learned counsel for respondents No. 1 to 6 has submitted that no fault can be found with the findings returned by the learned Addl. District Judge and the declaration given by learned Addl. District Judge with respect to Asha Devi and Narinder Kumar is in consonance with Section 16 of the Act. Section 16 of the Act is as follows:- “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 …6… 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 in capable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.” 9. Sub section (1) of Section 16 of the Act provides that 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 the Marriage Laws (Amendment) Act, 1976. In the present case the two courts below have recorded a finding that respondent No. 1 is the legally wedded wife of respondent No. 6 and during the subsistence of marriage of respondent No. 6 with respondent No.1 he got married with the appellant and everything had happened after the commencement of the Act. …7… 10. The respondent No. 1 to 5 have not assailed the findings of the trial court by way of cross-objections etc. before the first appellate court or before this court. The findings of facts recorded by the two courts below regarding the two marriages have become final. In these circumstances, respondents Asha Devi and Narinder Kumar are legitimate children of respondent No. 6 Vidya Sagar in view of Section 16 of the Act and they are entitled to claim the benefits as provided in Section 16 of the Act. The learned Addl. District Judge in the operative part of the judgement has erred in declaring that Asha Devi and Narinder Kumar are the illegitimate children of respondent No. 6 Vidya Sagar. Therefore, to this extent the impugned judgement and decree require modification. The substantial question of law, referred above, is accordingly decided in favour of the appellant. 11. No other point has been urged. 12. The result of above discussion, the appeal is partly allowed and it is declared that respondents No. 7 and 8 are the legitimate children of respondent No. 6 and they are entitled to the benefits of Section 16 of Hindu Marriage Act, 1955. The remaining part of judgement and decree dated 4.12.1999 passed by the learned Addl. District Judge is affirmed with no order as to cost. May 31, 2010. ( Kuldip Singh ), (Hem) Judge.