Kar HC | “There can be illegitimate parents, but no illegitimate children.” HC analyses whether a ‘son’ born out of void marriage be considered for compassionate appointment

Karnataka High Court: A Division Bench of B.V Nagarathna and Hanchate Sanjeev Kumar, JJ. allowed the petition and remarked:

“no child is born in this world without a father and a mother. A child has no role to play in his/her birth.”

The facts are such that the petitioner/appellant being a son of his deceased was denied compassionate appointment on the ground that he is born out of second marriage of his father during subsistence of his first marriage. The decision is in line with a circular dated 23-09-2011 Clause 2 of Karnataka Electricity Board Employees’ Recruitment  (Appointment on Compassionate Grounds) Regulations,1997 (i.e.  “Regulations”).  Being aggrieved, the petitioner assailed the same in the writ petition and then by a review petition which upheld the decision. Being aggrieved by the dismissal of the writ petition as well as the review petition instant appeal was preferred.

Observations

The Court observed that the Regulations have been made by the rule making authority being conscious of the fact that an adopted son or daughter has the same rights in law as a son or daughter born to a deceased Board employee. But, under the Regulations, adopted children are expressly excluded from the scope of the appointment on compassionate basis, which is in the realm of policy.

The Court observed the expression ‘son’ and ‘daughter’ so as to include even on illegitimate son and daughter by various judgments of the Supreme Court for the purpose of consideration for compassionate appointment, and Regulation 2(1)(b) cannot restrict the expression ‘family’ in relation to a deceased Board employee to mean only his or her legally wedded spouse and their sons and daughters who were jointly living with him. Such a definition would run counter to Section 16 of the Act, which is Parliamentary legislation and also Articles 14, 15(1) and 16(1) as well as the Directive Principles of State Policy concerning children which would include all children, whether legitimate or illegitimate, to have equal opportunities. When the Parliament under Section 16 of the Act, has treated legitimate and illegitimate children on par and given them equal status, Regulation 2(1)(b) cannot restrict the expression family in relation to deceased employee to mean only his or her legally wedded spouse and children jointly living with him.

The Court relied on judgment Union of India v. V. R. Tripathi [(2019) 14 SCC 646] wherein it was held

“We are here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination. The exclusion of one class of legitimate children from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceased employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be offensive to and defeat the whole object of ensuring the dignity of the family of a deceased employee who has died in harness. It brings about unconstitutional discrimination between one class of legitimate beneficiaries — legitimate children. 

The High Court has proceeded on the basis that the recognition of legitimacy in Section 16 is restricted only to the property of the deceased and for no other purpose. The High Court has missed the principle that Section 16(1) treats a child born from a marriage which is null and void as legitimate. Section 16(3), however, restricts the right of the child in respect of property only to the property of the parents. Section 16(3), however, does not in any manner affect the principle declared in sub-section (1) of Section 16 in regard to the legitimacy of the child.”

The Court also observed that with regard to the right of a child born out of a void marriage irrespective of the personal law under which the marriage might have taken place to seek appointment on compassionate basis. No doubt, validity of a marriage is dependent upon the personal law applicable to the parties but there is also Special Marriage Act, 1954, which is not relatable to any personal law. It is a species of a uniform civil law applicable to marriages of persons irrespective of the religion they may belong to. Even under the said Act, there are the concepts of void and voidable marriages. Hence, it is necessary to protect the rights of children born from such void or voidable marriage to seek compassionate appointments de hors the personal law applicable to the parents of such a child.

The Court observed as per Section 26 of the Special Marriage Act, 1954 deals with marriage between any two persons solemnized under the said Act which is a void and voidable marriage (Sections 24 and 25 of the said Act respectively) but conferring legitimacy to children born out of such marriages. It is noted that the said provision also has an over-riding effect and a child born out of a void or voidable marriage is deemed to be a legitimate child.

The Court thus observed for the limited purpose of this case, we find that children born out of void and voidable marriages under other personal laws, where there is no provision for conferment of legitimacy, must also have equal protection of the law by treating them on par with children born out of void and voidable marriages under the Hindu Marriage Act or the Special Marriage Act, 1954, insofar as the appointment on compassionate basis is concerned, as interpreted by us, under the Regulations under consideration and in light of the judgment of the Supreme Court in V.R.Tripathi.

The Court thus directed to “consider the application made by the appellant herein in accordance with the observations made above and in accordance with law.”

[K Santhosha v. Karnataka Power Transmission, 2021 SCC OnLine Kar 12989, decided on 24-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For Appellants-Mr Subramanya Bhat

For Respondents- Mr Ravindra Reddy

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