The Telegraph
Tuesday , July 29 , 2014
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Property boost for illegitimate child

New Delhi, July 28: A child born of an illegitimate union is entitled to a share of the father’s property but not its mother, the Supreme Court has ruled, dismissing the appeal of a woman who got “married” before her husband had divorced his first wife.

Rukmani had challenged the judgment of Madras High Court, which had ruled that only the first wife, Pushpa, Pushpa’s biological minor son and Rukmani’s minor son were entitled to the retirement benefits that Govindaraju, who died without leaving a will, would have got.

The high court, which interpreted the Hindu Marriage Act, 1955, had said Rukmani had no right to any share of the benefits as she was not a legally wedded wife.

The case related to post-retirement benefits but the order covers all property left behind by a person who dies intestate.

Pushpa, the first wife, had married Govindaraju in 1986 and a child was born to them. But after differences cropped up in the marriage, she left her matrimonial home with her son and started staying with her parents.

As the differences remained unresolved, Govindaraju married Rukmani in September 1996 and had a son with her. In 2000, he filed a divorce suit against Pushpa before a family court in Salem but died while the divorce proceedings were on.

In October 2004, the district munsif court in Salem ruled that Pushpa and her son would be entitled to two-thirds of the retirement benefits that Govindaraju, an employee of the state’s health department at the time of his death, would have got.

The court also ruled that Rukmani’s son was entitled to one-third of the share but not Rukmani as she was not a legally wedded wife.

On an appeal filed by Rukmani, the additional subordinate judge, Salem, allotted one-fourth of the share to Rukmani. The judge also granted a share of the pension benefits to Govindaraju’s father, whom the deceased had named as a nominee.

Pushpa then moved the high court, which interpreted the Hindu Marriage Act to say that Rukmani was not entitled to any share of the benefits. Under Section 5 of the act, the second marriage of either Hindu spouse is illegal if it takes place during the subsistence of the first marriage.

The court, however, concurred with the munsif court’s ruling that though Rukmani was an illegitimate wife, her minor son was entitled to a share of Govindaraju’s retirement benefits along with Pushpa and her son. The high court said Govindaraju’s father was only a nominee and not entitled to a share of the pension under the Hindu Succession Act, 1956.

According to the succession act, the property of a male Hindu who dies without leaving a will would devolve first on the Class i heirs who include the widow and sons. The father falls under Class ii and comes into the picture only if there are no Class i heirs.

Rukmani and Govindaraju’s father, Diddaiyan, then both moved the apex court. Justices S.J. Mukhopadhyaya and S.A. Bobde dismissed Rukmani’s appeal, saying there was “no reason to interfere with the findings of the high court”.

On the appeal filed by Diddaiyan, however, the bench issued notices asking Pushpa, her son and Rukmani’s minor son to respond.