Supreme Court of India
BHARATHA MATHA & ANR.versusR. VIJAYA RENGANATHAN & ORS.
- Citation
- 2010 INSC 328
- Decided
- 17 May 2010
- Disposal
- Appeal(s) allowed
- Bench
- B S CHAUHAN
Holding
In a second appeal under Section 100 CPC, the High Court may interfere with factual findings only if they are perverse; a live‑in relationship does not create a presumption of marriage where a spouse is alive, nor does it legitimize children for inheritance of ancestral property.
Summary
The predecessor‑in‑interest of Bharatha Matha filed a suit for a share in the property of her brother Muthu Reddiar, who died intestate and allegedly unmarried. Defendant No.1, Rengammal, claimed she was lawfully married to Alagarsami Reddiar (who was alive) and also asserted a live‑in relationship with Muthu Reddiar, producing two children. The trial court and the first appellate court held that Rengammal was indeed married to Alagarsami, so no presumption of marriage with Muthu could arise; the High Court on a second appeal reversed this finding, presuming marriage based on the alleged live‑in relationship and treating the children as legitimate under the Hindu Marriage Act. The Supreme Court examined whether a High Court may re‑appreciate evidence in a second appeal under Section 100 of the CPC and held that it may interfere with factual findings only if they are perverse, which was not the case here. It further held that a live‑in relationship does not create a presumption of marriage where a spouse is alive, and that the presumption of legitimacy under Section 112 of the Evidence Act can be displaced only by strong pre‑ponderance of evidence, which was absent. Finally, the Court noted that children of a void marriage can inherit only self‑acquired property, which was not pleaded, and therefore set aside the High Court judgment.
Issues considered
- The scope of Section 100 CPC: whether a High Court can re‑appreciate evidence and overturn factual findings in a second appeal.
- Whether a live‑in relationship between a woman whose husband is alive and a man gives rise to a legal presumption of marriage under the Hindu Marriage Act.
- Whether the presumption of legitimacy of a child under Section 112 Evidence Act can be displaced by the evidence presented.
- Whether children born of a void marriage are entitled to inherit ancestral coparcenary property.
Legislation cited
- Code of Civil Procedure, 1908s. 100
- Hindu Marriage Act, 1955s. 16(2), s. 5
- Indian Evidence Act, 1872s. 112
- Transfer of Property Act, 1882s. 52
Subjects
Second appealSection 100 CPCPresumption of marriageLive‑in relationshipLegitimacy of childrenHindu Marriage ActEvidence ActInheritanceCoparcenary property
Judgment
[2010] 7 S.C.R. 154
A BHARATHA MATHA & ANR.
v.
R. VIJAYA RENGANATHAN & ORS.
(Civil Appeal No. 7108 of 2003)
MAY 17, 2010
B
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
Code of Civil Procedure, 1908
c s. 100 - Second appeal - Scope of - High Court setting
aside the concurrent finding of fact recorded by both the courts
below that in view of the fact that husband of the defendant
was alive at the relevant time, marriage between her and the
brother of plaintiff could not be presumed - HELD: High Court
0 re-appreciated the documentary evidence, and did not take
into consideration the evidence of plaintiff's witnesses which
had been relied upon by courts below, but decided on the
presumption of marriage only placing reliance on the
evidence of DW-1 who had been disbelieved by the courts
E be!low for cogent reasons - Such a course is not permissible
while deciding a second appeal u/s100 - Judgment of High
Court set aside.
Hindu Marriage Act, 1955:
F s.5 - Marriage - Presumption of - HELD: If one of the
parties of live-in relationship has a spouse living, merely live-
in relationship between the said two parties would not lead to
presumption of marriage between them.
s. 16(2) - Legitimacy of children of void or voidable
G marriages - HELD: In view of legal fiction contained in s.16,
the illegitimate children for all practical purposes, including
succession to properties of their parents, have to be treated
as legitimate - But, they cannot succeed to the properties of
any other relation.
H 154
BHARATHA MATHA & ANR. v. R. VIJAYA 155
RENGANATHAN & ORS.
Evidence Act, 1872: A
s. 112 - Birth during marriage, conclusive proof of
legitimacy - Presumption of a child being legitimate can only
be displaced by a strong preponderance of evidence and not
merely by a balance of probabilities - Proof of non-access
8
between the parties to marriage during the relevant period is
the only way to rebut the presumption - In the instant case,
the proof of non-access between the parties to the legally
subsisting marriage had never been even pleaded - Hindu
Marriage Act, 1985 - ss. 5 and 16.
c
Transfer of Property Act, 1882:
s.52 - Transfer /is pendens - HELD: Owners still being
in possession of suit property and their suit for declaration of
title having been decreed, purchaser may resort to legal
0
proceedings for recovery of sale consideration from his
vendors - Hindu Marriage Act, 1955 - ss. 5 and 16 - Cod of
Civil Procedure, 1908 - s. 100.
The predecessor-in-interest of the appellants filed a
suit against respondent nos. 2 to 5, claiming her share E
in the suit property left by her brother namely, 'MR', who
died intestate and was stated to be unmarried. It was
stated that defendant-1 (respondent no.2) was married to
one 'AR' who was alive on the date of institution of the
suit and her claim of live-in relationship with 'MR' and F
having two children from him was to be rejected.
Defendant no. 1 denied her marriage with 'AR'. The trial
court decreed the suit. Respondent no. 1, having
purchased the suit property pending first appeal, got
himself impleaded as a party in the appeal. The first G
appellate court affirmed the decree. However, the High
Court allowed the second appeal filed by the
respondents. Aggrieved, the successors of the plaintiff
filed the appeal.
H
I 56 SUPREME COURT REPORTS [2010] 7 S.C.R.
A Allowing the appeal, the Court
HELD: 1.1. The High Court, while deciding a second
appeal, can interfere with the finding of fact, provided the
findings recorded by the courts below are perverse. In
the instant case, the trial court as well as the first appellate
8 court have recorded a categorical finding of fact that
defendant No.1 was legally wedded wife of 'AR" who was
alive on the date of institution of the suit and, therefore,
the question of marriage by presumption between
defendant no. 1 and 'MR' (brother of the plaintiff) would
C not arise; and for determining the same all the material
on record, including the statement of DW1 along wi•h all
other defence witnesses and the documents, particularly,
Exts.814, 818, 819 and 82, was taken into consideration.
The courts below placed very heavy reliance upon the
D witnesses examined by the plaintiff particularly, PWs 2
and 5. The High Court without making any reference to
the evidence of the plaintiff's witnesses, particularly,
P.Ws .2 and 5, reversed the finding of fact and reached
the conclusion that merely live-in-relationship between
E the said two parties would lead to the presumption of
marriage between them. The High Court has decided the
issue regarding the factum of marriage between 'AR' and
defendant no. 1 placing reliance only upon the statement
of DW1, step mother of 'MR', who had been disbelieved
F by the courts below by giving cogent reasons. Such a
course is not permissible while deciding the second
appeal u/s 100 CPC. [para 7, 9,13 and 17) [163-8-C; 163-
F; 166-G]
H.B. Gandhi, Excise & Taxation Officer-cum- Assessing
G Authority, Kamal & Ors. Vs. Mis. Gopi Nath & Sons & Ors.
1992 Supp.(2) SCC 312; Mis. Triveni Rubber & Plastics Vs.
Collector of Central E'<cise, Cochin AIR 1994 SC 1341;
Ku/deep Singh Vs. Commissioner of Police & Ors. (1998) 3
Suppl. SCR 594 = (1999) 2 SCC 10 ; Gaya Din (dead) thr.
H
BHARATHA MATHA & ANR. v. R. VIJAYA 157
RENGANATHAN & ORS.
Lrs. & Ors. Vs. Hanuman Prasad (dead) thr. Lrs. & Ors. AIR A
2001 SC 386; Rajinder Kumar Kindra Vs. Delhi
Administration, thr. Secretary (Labour) & Ors. (1985) 1
SCR 866 = AIR 1984 SC 1805; Sheet Chand Vs. Prakash
Chand (1998) 1 Suppl. SCR 297 =AIR 1998 SC 3063;
Rajappa Hanamantha Ranoji Vs. Mahadev Channabasappa B
& Ors. AIR 2000 SC 2108; Ku/want Kaur & Ors. Vs. Gurdial
Singh Mann (dead) by L.Rs. (2001) 2 SCR 525 = AIR 2001
SC 1273, relied on.
1.2. The High Court has also reappreciated the C
documentary evidence and took a view contrary to that
taken by the courts below. It was not appropriate for the
High Court to re-appreciate the evidence in second
appeal as no substantial question of law involved :therein.
In view of the fact that the High Court did not even take
note of the deposition of the plaintiff's witnesses, D
findings recorded by the High Court itself become
perverse and thus liable to be set aside. [Para 17-18) [166-
H; 167-A-C]
2. The High Cou_rt erred in not appreciating that the E
judgments of the courts· below could be based on
another presumption provided u/s 112 of the Evidence
Act, 1872, i.e. the presumption of a child being legitimate
and such a presumption can only be displaced by a
strong preponderance of evidence and not merely by a F
balance of probabilities as the law has to live in favour
of innocent child from being bastardised. In the instant
case, as the proof of non-access between defendant no.
1 and 'AR' had never been pleaded, the matter has not
been examined by the High Court in correct perspective. G
It is settled legal proposition that proof of non-access
between the parties to marriage during the relevant
period is the only way to rebut that presumption. [Para
15-16) [166-A-D]
Mohabbat Ali Khan Vs. Muhammad Ibrahim Khan & H
158 SUPREME COURT REPORTS [2010] 7 S.C.R.
A Ors. AIR 1929 PC 135; Chilukuri Venkateswarlu Vs. Chilukuri
Venkatanarayana (1954) SCR 424 =AIR 1954 SC 176;
Mahendra Manila/ Nanavati Vs. Sushi/a Mahendra Nanavati
(1964) SCR 267 =AIR 1965 SC 364; Peruma/ Nadar (Dead)
by Lrs. Vs. Ponnuswami Nadar (minor) (1971) SCR 49 =AIR
B 1971 SC 2352; Amarjit Kaur Vs. Harbhajan Singh and Anr.
(2003) 10 SCC 228; Sabha Hymavathi Devi Vs. Setti
Gangadhara Swamy and Ors. (2005) 1 SCR 848 =AIR 2005
SC 800; and Shri Baharsi Dass Vs. Teeku Dutta (Mrs.) and
Anr. (2005) 3 SCR 923 = (2005) 4 SCC 449, relied on.
c 3.1. Section 5(1) of the Hindu Marriage Act lays down
conditions for a Hindu marriage. It provides that marriage
may be solemnized between any two Hindus if neither of
them has a spouse living at the time of marriage. Section
11 of the Act provides that any marriage which is in
D contravention of s. 5(1) would be void. Section 16 as
amended by Ar.tendment Act of 1976 intends, as its prime
object, to bring about social reforms and conferment of
social status of legitimacy on a group of children,
otherwise treated as illegitimate .. In view of the legal
E fiction contained in s.16, the illegitimate children, for all
practical purposes, including succession to the
properties of their parents, have to be treated as
legitimate. They cannot, however, succeed to the
properties of any other relation on the basis of this rule,
F which in its operation, is limited to the properties of the
parents. [para 19-20 and 23] [167-D-E; 168-C-G-H]
S. P. S. Ba/asubramanyam Vs. Suruttayan @ Andali
Padayachi & Ors; AIR 1992 SC 756; S. Khushboo Vs.
G Kanniammal & Anr. JT (2010) 4 SC 478; Lata Singh Vs.
State of UP. & Anr. (2006) 3 Suppl. SCR 350 = AIR 2006
SC 2522; Smt. P.E.K. Kalliani Amma & Ors. Vs. K. Devi &
Ors. (1996) 2 Suppl. SCR 1 = AIR 1996 SC 1963, referred
to.
H Rameshwari Devi Vs. State of Bihar & Ors. (2000) 1
BHARATHA MATHA & ANR. v. R. VIJAYA 159
RENGANATHAN & ORS.
SCR .390 =AIR 2000 SC 735; Jinia Keotin & Ors. Vs. Kumar A
Sltaram Manjhi & Ors. (2002) 5 Suppl. SCR 689 = (2003)
1 SCC 730; Neelamma and others Vs. Sarojamma and
others (2006) 9 sec 612, referred to.
3.2. It is evident that a child born of void or voidable
marriage is not entitled to claim inheritance in ancestral 8
coparcenery property but is entitled only to claim share
in self-acquired properties, if any of his/her parents. In the
instant case, the respondents did not plead at any stage
that the suit land was a self-acquired property of 'MR'. It
is evident from the record that 'MR' did not partition his C
joint family properties. He died issueless and intestate in
1974. Therefore, the question of inheritance of co-
parcenery property by the illegitimate children, who were.
· born out of the live-in-relationship, could not arise. Thus,
the judgment of the High Court is liable to be set aside D
only on this sole ground. [Para 27-28) [171-B-D]
4. It shall be open to R-5 to resort to legal
proceedings permissible in law for recovery of the sale
consideration from his vendors, as he has purchased the E
suit property /is pendens and the appellants are still in
possession thereof. [Para 30) [171-E-F]
Case Law Reference:
(1998) 1 Suppl. SCR 297 relied on para 10 F
AIR 2000 SC 2108 relied on para 11
(2001) 2 SCR 525 relied on para 12
1992 Supp. (2) sec 312 relied on para 14
G
AIR 1994 SC 1341 relied on para 14
(1998) 3 Suppl. SCR 594 relied on para 14
AIR ~00~ SC 386 relied on para 14
H
160 SUPREME COURT REPORTS (2010] 7 S.C.R.
A (1985) 1 SCR 866 relied on para 14
AIR 1929 PC 135 relied on para 16
1954) SCR 424 relied on para 16
(1964) SCR 267 relied on para 16
B
(1971) SCR 49 relied on para 16
(2003) 10 sec 228 relied on para 16
(2005) 1 SCR 848 relied on para 16
c (2005) 3 SCR 923 relied on para 16
AIR 1992 SC 756 referred to para 22
JT (2010) 4 SC 478 referred to para 22
D (2006) 3 Suppl. SCR 350 referred to para 22
(1996) 2 Suppl. SCR 1 referred to para 23
(2000) 1 SCR 390 referred to para 24
(2002) 5 Suppl. SCR 689 referred to para 25
E
(2006) 9 sec 612 referred to para 26
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7108 of 2003.
F
From the Judgment & Order dated 10.07.2001 of the High
Court of Judicature at Madras in S.A. No. 1603 of 1987.
K. Ram Kumar for the Appellants.
G Sai Krishna Rajgopal, Hari Shankar, Vikas Singh Jangra,
Bharat S. Kumar for the Respondents.
The Order of the Court was delivered by
H
BHARATHA MATHA & ANR. v. R. VIJAYA 161
RENGANATHAN & ORS.
ORDER A
DR. B.S. CHAUHAN, J. 1. This appeal has been preferred
against the Judgment and Order of the High Court of Judicature
at Madras datecl 10th July, 2001 allowing the appeal filed by
the respondent 1\Jo.1 against the judgment and decree of the B
1st Appellate Court dated 17.9.1986 affirming the judgment and
decree of the Trial Court dated 7.3.1977 in O.S. No.269/1975
instituted by the predecessor-in-interest of the present
appellants for claiming the property in dispute and denying the
share to the respondent Nos. 2 to 5 or their predecessor-in- C
interest.
2. The facts and circumstances giving rise to the present
case are that the predecessor-in-interest of the present
appellants, Peria Mariammal instituted a suit, being O.S. No.
269 of 1975 against the respondents and their predecessor- D
in-interest claiming the share of her brother Muthu Reddiar, on
the ground that he died unmarried and intestate and that Smt.
Rengammal, the defendant No. 1 in the suit was a legally
wedded wife of one Alagarsami Reddiar, who was still alive,
therefore, her claim that she had l~ve-in-relationship with E
1plaintiffs brother Muthu Reddiar and had two children from him,
had to be ignored. The defendants/respondents contested the
suit denying the marriage between defendant No. 1 and the
said Alagarsami Reddiar. The Trial Court decreed the suit vide
Judgment and decree dated 7th March, 1977 recording the F
finding that Rengammal, defendant No.1 in the suit was wife
of Alagarsami Reddiar who was alive at the time of filing the
suit. There had been no legal separation between them.
Therefore, the question of live-in-relationship of Smt.
Rengammal with Muthu Reddiar could not arise. G
3. Being aggrieved, the defendants therein filed the First
Appeal. The respondent No. 1 herein, Vijaya Renganathan,
purchased the suit property in 1978 i.e, during the pendency
of the First Appeal for a sum of about Rs. 10,000/- and got
himself impleaded in the appeal as a party. The First Appeal . H
162 SUPREME COURT REPORTS t2010] 7 S.C.R
A was dismissed by the Appellate Court vide judgment and
decree dated 17th September, 1986. The said purchaser,
respondent No.1, alone filed the Second Appeal under Section
100 of Code of Civil Procedure, 1908 (hereinafter called as
'CPC') before the High Court which has been allowed. Hence,
B this appeal.
4. Learned counsel for the appellants has submitted that
Smt. Rengammal, original defendant No 1 was legally wedded
wife of Alagarsami and he was still alive Therefore, the
question of presumption of ma1riaqe for having live-in-
c relationship with Muthu Reddiar could not arise. In such
eventuality, Muthu Reddiar could b~ IJable for offence of
Adultery under Section 497 of Indian Penal Code, 1860
(hereinafter called as 'IPC'). More so, even if live-in-relationship
is admitted and it is further admitted that the two children were
C born due to that live-in-relationship, the said children could not
inherit the coparcenery property and in absence of any finding
recorded by any Court below that the suit land was self-
acquired property of Muthu Reddiar, the judgment of the High
Court is liable to be set aside. At the most, the respondent No.
E 1 herein can claim recovery of the sale consideration from his
vendors as the possession is still with the present appellants.
5. On the contrary, learned counsel tor the respondent No.1
has vehemently opposed the submission of the learned counsel
F for the appellants, contending that the High Court after re-
appreciating the evidence on record came to the conclusion
that the factum of marriage of Smt. Rengammal with
Alagarsam1 Reddiar could not be proved by the appellants
herein and because of their live-in-relationship, a presumption
G of marriage between Muthu Reddiar and Smt. Rengammal
could be drawn and, therefore, in view of the provisions of
Section 16 of the Hindu Marriage Act, 1955 (hereinafter called
as, "the Act"), the two children born out of that live-in-relationship
were entitled to inherit the property of Muthu Reddiar and thus,
H the appeal is liable to be dismissed.
BHARATHA MATHA & ANR. v. R. VIJAYA 163
RENGANATHAN & ORS. [DR. B.S. CHAUHAN, J.]
6. We have considered the rival submissions of the learned A
counsel for the parties and perused the record.
7. The Trial Court as well as the First Appellate Court have
recorded a categori~al finding of fact that Smt. Rengammal,
defendant No.1 hac been married to Alagarsami Reddiar who 8
was alive on the d: :e of institution of the suit and, therefore,
the question of marriage by presumption between Smt.
Rengammal and Muthu Reddiar would not arise and for
determining the same all the material on record had been taken
into consideration including the statement of Seethammal, C
DW1 along with all other defence witnesses and the
documents, particularly, Exts.814, 818, 819 and 82.
8. However, the High Court framed two substantial
questions of law, namely:
D
(a) Whether on the admitted long cohabitation of the First
defendant and Muthu Reddiar, a legal presumption of a
lawful wedlock is not established; and
(b) Whether the specific case of prior and subsisting
marriage between defendant and Alagarsami. Reddiar set E
up by Plaintiff is established as required by law and she
could have a preferential claim over defendants 1 to 3?
9. While determining the substantial question (b) the High
__ .Court only considered the statement of Seethammal, DW1, the F
step mother of Muthu Reddiar and did not take into
consideration the evidence of plaintiffs witnesses which had
been relied upon by the courts below, particularly, Kumarasamy
PW2 and Kandasamy PW5 and re-appreciated the
documentary evidence. Therefore, the question does arise as G
to whether such a course is permissible while deciding the
Second Appeal under Section 100 CPC.
10. In Shee/ Chand vs. Prakash Chand, AIR 1998 SC
3063, this Court held that question of re-appreciation of
H
164 SUPREME COURT REPORTS [2010] 7 S C.R.
A evidence and framing the substantial question as to whether
the findings relating to factual matrix by the court below could
vitiate due to irrelevant consideration and not under law, being
question of fact cannot be framed.
11. In Rajappa Hanamantha Ranoji Vs. Mahadev
8
Channabasappa & Ors. AIR 2000 SC 2108, this Court held
that it is not permissible for the High Court to decide the
Second Appeal by re-appreciating the evidence as if it was
deciding the First Appeal unless it comes to the conclusion that
C thE~ findings recorded by the court below were perverse.
12. In Ku/want Kaur & Ors. Vs. Gurdial Singh Mann
(dead) by L.Rs. AIR 2001 SC 1273, this Court held that the
question whether Lower Court's finding is perverse may come
within the ambit of substantial question of law. However, there
D must be a clear finding in the judgment of the High Court as to
perversity in order to show compliance with provisions of
Section 100 CPC. Thus, this Court rejected the proposition that
scrutiny of evidence is totally prohibited in Second Appeal.
E 13. Thus, it is evident that High Court can interfere with the
finding of fact while deciding the Second Appeal provided the
findings recorded by the Courts below are perverse.
14. In H.B. Gandhi, Excise & Taxation Officer-cum-
Assessing Authority, Kamal & Ors. Vs. Mis. Gopi Nath & Sons
F & Ors. 1992 Supp.(2) SCC 312, this Court held that if a finding
of fact is arrived at by ignoring or excluding relevant material
or by taking into consideration irrelevant material or if the
finding so outrageously defies logic as to suffer from the vice
of irrationality incurring the blame of being perverse, then the
G finding is rendered infirm in law. In Mis. Triveni Rubber &
Plastics Vs. Collector of Central Excise, Cochin AIR 1994 SC
1341, this Court held that the order suffers from perversity in
case some relevant evidence has not been considered or that
certain inadmissible material has been taken into consideration
H or where it can be said that the findings of the authorities are
BHARATHA MATHA & ANR. v. R. VIJAYA 165
RENGANATHAN & ORS. [DR. B.S. CHAUHAN, J.)
based on no evidence or that they are so perverse that no A
reasonable person would have arrived at those findings. In
Ku/deep Singh Vs. Commissioner of Police & Ors. (1999) 2
sec 10, this Court held that if a decision is arrived at on no
evidence or evidence which· is thoroughly unreliable and no
reasonable person would act upon it, the order would be B
perverse. But if there is some evidence on record which is
acceptable and which cannot be relied upon, howsoever
compendious it may be, the conclusions would not be treated
as perverse and the findings would not be interfered with. In
Gaya Din (dead) thr. Lrs. & Ors. Vs. Hanuman Prasad (dead) c
thr. Lrs. & Ors. AIR 2001 SC 386, it has been held that order
of an authority is perverse in the sense that the order is not
supported by the evidence brought on record or it is against
the law or it suffers from the vice of procedural irregularity. In
Rajinder Kumar Kindra Vs. Delhi Administration, thr.
0
Secretary (Labour) & Ors. AIR 1984 SC 1805, this Court while
dealing with a case of discip\inary proceedings against an
employee considered the issue and held as under:
"17. It is equally well-settled that where a quasi-judicial
tribunal or arbitrator records findings based on no legal E
evidence and the findings are either his ipse dixit or based
on conjectures and surmises, the enquiry suffers from the
additional infirmity of non-application of mind and stands
vitiated ..... The High Court, in our opinion, was clearly in
error in declining to examine the contention that the findings F
were perverse on the short, specious and wholly untenable
ground that the matter depends on appraisal of evidence."
15. In the instant case, the Courts below had appreciated
the entire evidence and came to the conclusion that Smt. G
Rengammal, defendant no.1 was legally wedded wife of
Alagarsami Reddiar and thus did not presume her marriage
with Muthu Reddiar. The High Court without making any
reference to the evidence of the plaintiff's witnesses,
particularly, Kumarasamy-P .W.2 and Kandasamy-PW.5 H
166 SUPREME COURT REPORTS (2010] 7 S.C.R.
A re!versed the finding of fact and reached the conclusion that
merely live-in-relationship between the said two parties would
lead the presumption of marriage between them. The High
Court erred in not appreciating that the judgments of the Courts
below could be based on another presumption provided under
B Section 112 of the Evidence Act, 1872 (hereinafter called as
the 'Evidence Act').
16. Section 112 of the Evidence Act provides for a
presumption of a child being legitimate and such a presumption
can only be displaced by a strong preponderance of evidence
C and not merely by a balance of probabilities as the law has to
live in favour of innocent child from being bastardised. In the
instant case, as the proof of non-access between Rengammal
and Alagarsami had never been pleaded what to talk of proving
the same, the matter has not been examined by the High Court
D in correct perspective. It is settled legal proposition that proof
of non-access between the parties to marriage during the
relevant period is the only way to rebut that presumption. [vide
Mohabbat Ali Khan Vs. Muhammad Ibrahim Khan & Ors. AIR
1929 PC 135; Chi/ukuri Venkateswarlu Vs. Chilukuri
E Venkatanarayana AIR 1954 SC 176; Mahendra Manila/
Nanavati Vs. Sushi/a Mahendra Nanavati AIR 1965 SC 364;
Perumal Nadar (Dead) by Lrs. Vs. Ponnuswami Nadar
(minor) AIR 1971 SC 2352; Amarjit Kaur Vs. Harbhajan Singh
and Anr. (2003) 10 SCC 228; Sabha Hymavathi Devi Vs. Setti
F Gangadhara Swamy and Ors. AIR 2005 SC 800; and Shri
Banarsi Dass Vs. Teeku Dutta (Mrs.) and Anr. (2005) 4 SCC
449]
17. The High Court has decided the issue regarding the
G factum of marriage between Alagarsami and Rengammal only
placing reliance upon the statement of Smt. Seethammal, DW1,
step mother of Muthu Reddiar who had been disbelieved by
the Courts below by giving cogent reasons and taking note of
the fact that she had arranged their marriage spending a sum
H of Rs.10 only. The High Court has also reappreciated the
BHARATHA MATHA & ANR. v. R. VIJAYA 167
RENGANATHAN & ORS. [DR. B.S. CHAUHAN, J.]
documentary evidence and took a view contrary to the view A
t~•!<en by the court's below. It was not appropriate for the High
Court to re-appreciate the evidence in Second Appeal as no
substantial question of law involved therein. Both the Courts
below found that Rengammal was legally wedded wife of
Alagarsami. The Courts below had placed very heavy reliance B
upon the witnesses examined by the appellant/plaintiff
particularly, Kumarasamy- PW 2 and Kandasamy- PW 5.
18. In view of the fact that the High Court did not even take
note of the deposition of the plaintiff's witnesses, findings
recorded by the High Court itself become perverse and thus
c
liable to be set aside.
19. Be that as it may, Section 5(1) of the Act lays down
conditions for a Hindu marriage. It provides that marriage may
be solemnized_between any two Hindus if neither of them is a D
spouse living at the time of marriage. Section 11 provides that
any marriage which is in contravention of Section 5(1) of the
Act, would be void. Section 16 of the Act stood amended vide
Anwndment Act of 1976 and the amended provisions read as
under:- E
"Legitimacy of children of void and voidable marriages
- (1) Notwithstanding that a 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 ........ F
(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 G
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
H
168 SUPREME COURT REPORTS [2010] 7 S.C.R.
A (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
B would have been incapable of possessing or acquiring
any such rights by reason of his not being the legitimate
· child of his parents." (Emphasis added)
20. Thus, it is evident that Section 16 of the Act intends to
bring about social reforms, conferment of social status of
C legitimacy on a group of children, otherwise treated as
illef1itimate, as its prime object.
21. In S.P. S. Balasubramanyam Vs. Suruttayan @
~ Ancfali Padayachi & Ors. AIR 1992 SC 756, this Court held
D that if man and woman are living under the same roof and
cohabiting for a number of years, there will be a presumption
under Section 114 of the Evidence Act that they live as
husband and wife and the children born to them will not be
illegitimate.
E
22. In S. Khushboo Vs. Kanniammal & Anr. JT 2010 (4)
SC 478, this Court, placing reliance upon its earlier decision
in Lata Singh Vs. State of UP. & Anr. AIR 2006 SC 2522, held
that live-in-relationship is permissible only in unmarried major
persons of heterogeneous sex. In case, one of the said persons
F is married, man may be guilty of offence of adultery and it would
amount to an offence under Section 497 IPC.
23. In Smt. P.E.K. Kalliani Amma & Ors. Vs. K. Devi &
Ors. AIR 1996 SC 1963, this Court held that Section 16 of the
G Act is nqt ultra vires of the Constitution of India. In view of the
legal fiction contained in Section 16, the illegitimate children,
for all practical purposes, including succession to the properties
of their parents, have to be treated as legitimate. They cannot,
however, succeed to the properties of any other relation on the
H
BHARATHA MATHA & ANR. v. R. VIJAYA 169
RENGANATHAN & ORS. [DR. B.S. CHAUHAN, J.]
basis of this rule, which in its operation, is limited to the A
properties of the parents.
24, In Rameshwari Devi Vs. State of Bihar & Ors. AIR
2000 SC 735, this Court dealt with a case wherein after the
death of a Government employee, children born illegitimately 8
by the woman, who had been living with the said employee,
claimed the share in pension/gratuity and other death-cum-
retiral benefits along with children born out of a legal wedlock.
This Court held that under Section 16 of the Act, children of void
marriage are legitimate. As the employee, a Hindu, died
intestate, the children of the deceased employee b.orn out of
c.
void marriage were entitled to share in the family pension,
death-cum-retiral benefits and gratuity.
25. In Jinia Keotin & Ors. Vs. Kumar Sitaram Manjhi &
Ors. (2003) 1 SCC 730, this Court held that while engrafting a D
rule of fiction in Section 16 of the Act, the illegitimate children
have become entitled to get share only in self-acquired
properties of their parents. The Court held as under :-
"4 ........... Under the ordinary law, a child for being treated E
as legitimate must be born in lawful wedlock. If the
marriage itself is void on account of contravention of the
statutory prescriptions, any child born of such marriage
would have the effect, per se, or on being so declared or
annulled, as the case may be, of bastardising the children
F
born of the parties to such marriage. Polygamy, which was
permissible and widely prevalent among the Hindus in the
past and considered to have evil effects on society, came
to be put an end to by the mandate of the Parliament in
enacting the Hindu Marriage Act, 1955. The legitimate
status of the children which depended very much upon the G
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 had to suffer a permanent set back in life and in the
eyes of society by being treated as illegitimate. A laudable H
170 SUPREME COURT REPORTS [2010] 7 S.C.R.
A and noble act of the legislature indeed in enacting Section
16 to put an end to a great social evil. At the same time,
Section 16 of the Act, while engrafting a rule of fiction in
ordaining the children, though illegitimate, to be treated as
legitimate, notwithstanding that the marriage was void or
B voidable chose also to confine its application, so far as
succession or inheritance by such children are concerned
to the properties of the parents only.
5. So far as Section 16 of the Act is concerned, though it
was enacted to legitimise children, who would otherwise
c suffer by becoming illegitimate, at the same time it
expressly provide in Sub-section (3) by engrafting a
provision with a non-obstante clause stipulating specifically
that nothing contained in Sub-section (1) or Sub-section
(2) shall be construed as conferring upon any child of a
D 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 parent~. in any case
where, but for the passing of this Act, such child would have
been incapable of possessing or acquiring any such rights
E by reason of this not being the legitimate child of his
parents'. In the light of such an express mandate of the
legislature itself there is no room for according upon such
children who but for Section 16 would have been branded
as illegitimate any further rights than envisaged therein by
F resorting to any presumptive or inferential process of
reasoning, having recourse to the mere object or purpose
of enacting Section 16 of the Act. Any attempt to do so
would amount to doing not only violence to the provision
specifically engrafted in Sub-section (3) of Section 16 of
G the Act but also would attempt to court relegislating on the
subject under the guise of interpretation, against even the
will expressed in the enactment itself. Consequently, we
are unable to countenance the submissions on behalf of
the appellants ....... "
H
BHARATHA MATHA & ANR. v. R. VIJAYA 171
RENGANATHAN & ORS. [DR. B.S. CHAUHAN, J.]
26. This view has been approved and followed by this A
Court in Nee/amma and others Vs. Sarojamma and others
(2006) 9 sec 612.
27. Thus, it is evident that in such a fact-situation, a child
born of void or voidable marriage is not entitled to claim 8
inheritanc-· ,,, ancestral coparcenery property but is entitled only
to claim · in self acquired properties, if any.
28. In the instant case, respondents had not pleaded at any
stage that the Suit land was a self acquired property of Muthu
Reddiar. It is evident from the record that Muthu Reddiar did C
not partition his joint family properties and died issueless and
intestate in 1974. Therefore, the question of inheritance of
coparcenery property by the illegitimate children, who were born
outof the live-in-relationship, could not arise. Thus, the judgment
of the High Court is liable to be set aside only on this sole D
ground.
29. In view of the above, the appeal succeeds and is
allowed. The judgment and order of the High Court dated 10th
July, 2001 is hereby set aside. No order as to cost. E
30. However, it shall be open to R.5 to resort to legal
proceedings, permissible in law for recovery of the sale
consideration from his vendors as he has purchased the
property in lis pendis and the appellants are still in possession
of the suit property. F
R.P. Appeal allowed.
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