A Child By Virtue Of Birth Can’t Be Enamoured By Legitimacy Or Stigmatized By Illegitimacy: Calcutta HC

The Calcutta High Court remarked that a child by virtue of birth cannot be enamoured by legitimacy or stigmatized by illegitimacy being contrary to Article 14 of the Constitution.

The Court remarked thus in a Writ Petition filed by the first wife of the deceased husband, seeking appointment of younger son of second wife on compassionate grounds.

A Single Bench of Justice Ananya Bandyopadhyay observed, “The legal intent of the provisions enumerated in Section 16 of the Hindu Marriage Act, 1955 vividly explained by the decisions of the Hon’ble Supreme Court as cited above fortified the status of a child born out of a void marriage to be a legitimate child to eradicate discrimination compared to a child born out of a valid marriage. A child by virtue of its birth cannot be enamoured by legitimacy and/or stigmatized by illegitimacy contrary to the principle enshrined in Article 14 of the Constitution to its prejudice devoid of any iota of fault on its part of having taken birth through a void marriage.”

Advocate Pratik Majumder appeared on behalf of the Petitioner while Advocate Sanajit Kumar Ghosh appeared on behalf of the Respondents.

Brief Facts -

The husband of the Petitioner (first wife) was the Head Constable of Railway Protection Force of Eastern Railway, posted at STN post under the Asansol Division. He expired on duty, being survived by two wives, viz. his first wife i.e., Petitioner and the second wife along with two sons and a daughter. The first wife (Petitioner) and the younger son of the second wife, filed a representation to I.G. cum Chief Security Commissioner RPF Eastern Railways, Kolkata to appoint the said son on compassionate grounds. The first wife did not object to the second marriage of her husband and the elder son of the second wife refrained to object through a representation to such employment on compassionate grounds. By a letter, the Senior Divisional Personnel Officer of the Eastern Railway, Asansol stated in terms of the Railway Board’s Letter that if an employee died in harness leaving more than one wife along with children born to the second wife, appointment on compassionate grounds to the second wife and her children could not be considered unless the administration had permitted the second marriage in special circumstances, taking into account personal laws and other such circumstances.

Therefore, the Petitioner was asked to intimate as to whether her late husband had taken any permission from the administration regarding his marriage to his second wife and to provide the relevant documents effectively. The Petitioner replied to the same saying that the authorities were aware of the second marriage of her husband since his children from the second marriage received benefits in the capacity of dependents of the deceased from the Railway Department. The Senior Divisional Personnel observed vide a communication that the deceased got married twice during his lifetime while his first wife was alive and hence, the children of his second wife would not be considered for appointment unless permission is taken from authorities. Resultantly, the Petitioner’s request was rejected and hence, she was before the High Court.

The High Court after hearing the contentions of the counsel, noted, “The respondents should not have given effect to the circular No. E(NG)/II/91/RC-1/136 dated 02.01.1992, once it had been struck down by the Division Bench in Namita Goldar v Union of India as observed by the Hon’ble Supreme Court in paragraph 20 of V.R. Tripathi (Supra).”

The Court further said that the objective to grant compassionate appointment to redress financial constraints occasioned in a family in the event of the death of the bread earner ensures a means of sufficiency to assuage abrupt crisis and indigence, which cannot be refused ambiguously and unjustifiably on the basis of a circular which is unequivocally unconstitutional to judge a child’s entitlement to an appointment on compassionate ground on the basis of its descent.

“It is reprehensible and repugnant to distinguish the eligibility or suitability to the aforesaid appointment considering the valid or void source of inception of a child’s birth. The circular vitiates and invalidates the constitutional mandate of equality before law”, it added.

The Court, therefore, directed that the Respondent authorities shall grant the appointment on compassionate ground in favour of the second wife’s younger son, provided he fulfils other conditions of such appointment on scrutiny of his application.

“If the other conditions are fulfilled in accordance to law, the respondent authority is to complete the process of such appointment within 3 months from the date of passing of this order”, it also directed.

Accordingly, the High Court allowed the Writ Petition.

Cause Title- Lachhmina Devi & Anr. v. Union of India & Ors.

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