Children Born From Void Marriages Cannot Be Denied Railway Passes Or Other Benefits: Bombay High Court Quashes Railway Board Circular

The Court was hearing a railway employee’s challenge to a Central Administrative Tribunal order affirming the denial of railway passes, medical facilities and other benefits to his three children because they were born before his marriage to their mother.

A Bench of Chief Justice Mahesh Chandra Tripathi and Justice Advait M. Sethna held that the first two children could not be denied benefits merely because they were born during the subsistence of the employee’s first marriage. It further found no legal basis to exclude the third child, who was born after the first marriage had been dissolved but before the second marriage was solemnised.

The Bench observed: “… the law does not envisage any distinction, let alone any discrimination qua children born out of void marriages, in the context of their right to be eligible for benefits including railway passes. Having observed that the first two children who were born out of the relationship of the Petitioner with the second wife, during the subsistence of the first marriage are entitled to the said benefits of Railway Pass, etc., there is no rationale, much less legal embargo to deny such benefits to the third child who was born on 10th February 2016, after divorce qua the first wife and before solemnization of the marriage with the second wife. Depriving the child of such benefit would tantamount to discrimination, inter alia, in the teeth of Article 14 of the Constitution, which cannot be countenanced.”

Advocate S.N. Pillai appeared for the petitioner. Advocate Suresh Kumar appeared for the Railways.

Background

The petitioner was employed as a Trackman with Central Railway. He married his first wife in 2004, and their marriage was dissolved by mutual consent in September 2014. He subsequently married the mother of the three children in June 2016.

Two of the children were born in 2009 and 2012, during the subsistence of the petitioner’s first marriage. The third child was born in February 2016, after the divorce but before the petitioner’s second marriage.

The petitioner applied to include his second wife and the three children in his service record for family passes, privilege ticket orders, medical facilities and nominations relating to service dues. The railway authorities accepted the second wife as his legally wedded spouse but denied the children railway passes by relying on a Railway Board circular issued in March 2005.

Before the Tribunal and the High Court, the petitioner relied on the Railway Servants (Pass) Rules, 1986, and Section 16 of the Hindu Marriage Act, 1955. He argued that the Pass Rules used the expressions “son” and “daughter” without restricting them to children born from a valid marriage and that Section 16 conferred legitimacy upon children born from void marriages.

The Railways contended that children born from a void marriage were outside the definition of “family” under the Pass Rules. They defended the March 2005 circular and argued that the restriction was justified because a railway employee was prohibited from contracting another marriage while the first spouse was living.

The Tribunal dismissed the employee’s application after referring to Rule 21 of the Railway Services (Conduct) Rules, 1966. It treated his relationship as misconduct and concluded that extending pass and travel benefits to the children would incentivise void marriages and improperly use public resources.

Court’s Observations

Pass Rules Read With Statutory Protection Against Discrimination

The Court reproduced the Railway Servants (Pass) Rules, 1986, under which “family” includes sons and daughters falling within specified categories. Reading the Rules with the applicable statutory provisions and precedents, it concluded that the law does not envisage any distinction or discrimination against children born from void marriages in determining eligibility for benefits, including railway passes.

The Court also considered the definition of an adopted child, which extends recognition irrespective of whether the adoption is permissible under the personal law governing the railway employee. It noted that entitlement to medical facilities under the Indian Railway Medical Manual was linked to eligibility under the Railway Pass Rules.

The Bench found that the Tribunal had been swayed by the allegation that the petitioner violated the Railway Services (Conduct) Rules. It held that the legal entitlements of his children could not be determined by labelling them illegitimate or by relying on the circumstances of their parents’ relationship.

The Court stated: “Therefore, in our considered view, children are children and the labels of illegitimate, etc. is not what the law prescribes and or mandates, so as to deprive/deny the benefits to them, in the given factual matrix. In view thereof, the Impugned Circular (RBE No.39/2005) which runs contrary in letter and spirit to such mandate of law, cannot be sustained.”

Section 16 Protects Children Born From Void Marriages

The Court considered Section 16 of the Hindu Marriage Act, 1955, which confers legitimacy upon children born from void or voidable marriages.

Referring to Union of India v. V.R. Tripathi (2019), the Bench noted that the Supreme Court had held that Section 16(3) did not affect the principle of legitimacy declared in Section 16(1).

The Bench also considered Central Government memoranda issued in 1996 and 2012 concerning family pension for children born from void or voidable marriages. It observed that these memoranda protected the rights of such children and permitted them to receive family pension in accordance with the applicable pension rules.

The Court stated that the 2012 memorandum did not prohibit children born to a woman whose marriage was legally invalid from receiving family pension. It noted that such benefits were payable in the manner prescribed under the relevant pension rules.

Exclusion Violated Article 14

The Court relied on V.R. Tripathi (2019), in which the Supreme Court considered the exclusion of a child born from a second marriage from compassionate appointment under a Railway Board circular.

The Bench noted that the Supreme Court had held that once Section 16 treats a child born from a void marriage as legitimate, the State cannot exclude that child from compassionate appointment consistently with Article 14.

Quoting the decision, the Bench stated: “Once Section 16 of the Hindu Marriage Act, 1955 regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would not be open to the State, consistent with Article 14 to exclude such a child from seeking the benefit of compassionate appointment. Such a condition of exclusion is arbitrary and ultra vires.”

The Court further noted that V.R. Tripathi (2019) treated the exclusion as disproportionate to the purpose of compassionate appointment. It observed that the Supreme Court had emphasised that children do not choose their parents and that denying benefits to a child whom the law treats as legitimate is offensive to the child’s dignity and the constitutional guarantee against discrimination.

The Bench noted that the Railway Board circular considered in V.R. Tripathi (2019) had earlier been struck down by the Calcutta High Court in Namita Goldar v. Union of India (2010). The Supreme Court had approved that decision and held that the Railways could not issue a fresh circular in 2013 reiterating the terms of the invalidated 1992 circular.

The High Court found that the March 2005 circular challenged before it was also premised upon the 1992 circular considered in V.R. Tripathi (2019).

Discrimination On Ground Of Descent

The Court further relied on Mukesh Kumar v. Union of India (2022), in which the Supreme Court held that a compassionate-appointment policy could not discriminate between children based on their legitimacy or the validity of their parents’ marriage.

The Bench noted that the Supreme Court interpreted “descent” under Article 16(2) as encompassing a person’s familial origins, including the validity of the parents’ marriage. Quoting the decision, the Court stated: “The policy cannot discriminate against a person only on the ground of descent by classifying children of the deceased employee as legitimate and illegitimate and recognising only the right of legitimate descendant. Apart from the fact that strict scrutiny would reveal that the classification is suspect, as demonstrated by this Court in V.R. Tripathi, it will instantly fall foul of the constitutional prohibition of discrimination on the ground of descent. Such a policy is violative of Article 16(2).”

The Court observed that Mukesh Kumar (2022) followed V.R. Tripathi (2019) and reaffirmed that illegitimacy could not be used to deny public employment and the benefits accruing from it.

The Bench also referred to K. Santhosha v. Karnataka Power Transmission Corporation Limited (2021), in which the Karnataka High Court held that an employer could not distinguish between legitimate and illegitimate children after Parliament had conferred legitimacy upon children born from void marriages.

No Basis To Exclude The Third Child

The Court held that the first two children could not be denied benefits merely because they were born from the petitioner’s relationship with their mother during the subsistence of his first marriage.

The Bench found the denial of benefits to the third child even less sustainable because he was born after the petitioner’s first marriage had already been dissolved. It held that there was no rational or legal embargo preventing the third child from receiving the same benefits merely because his birth preceded the parents’ subsequent marriage.

The Court concluded that depriving the third child of those benefits would amount to discrimination contrary to Article 14.

Conclusion

The Bombay High Court allowed the petition and set aside the Central Administrative Tribunal’s October 2018 order.

The Court quashed the Railway Board circular issued in March 2005 in its entirety. It also quashed the administrative communication of May 2017 to the extent that it declared the petitioner’s children ineligible for railway passes and other benefits.

The Railways were directed to consider the petitioner’s claim for the benefits sought in light of the judgment and in accordance with law within two months of receiving its certified copy.

Cause Title: Kiran Tukaram Shelke v. Union of India and Others (Neutral Citation: 2026:BHC-AS:41837-DB)

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