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2012 DIGILAW 255 (CHH)

SHAILENDRA SINGH v. NITENDRA KUMAR

2012-10-01

T.P.SHARMA

body2012
ORDER 1. By this revision the petitioners have challenged the legality and propriety of the order dated 3.9.2002 passed by the Additional District Judge, Janjgir in Misc. Civil Appeal No. 13/02 affirming the order dated 9.5.2001 passed by the Civil Judge Class-1, Janjgir in Misc. Case No.2/2000 whereby the court below has declared the respondent No. 1, son of second wife of deceased Rajendra Singh, as successor of deceased Rajendra Singh along with the petitioners i.e. 1st wife of the deceased and her children. 2. I have heard learned counsel for the parties and perused the impugned orders. 3. As per submission of learned counsel for the petitioners, during subsistence of first marriage with the petitioner No.4-Smt. Savitri Singh, her husband Rajendra Singh has solemnized second marriage with respondent No.4 -Smt. Sarita Singh and therefore marriage of Rajendra Singh with Sarita Singh was void. He further submits that son of respondent No.2 is not entitled for succession. 4. As per submission of learned counsel for the parties, the marriage between said Rajendra Singh and Smt. Sarita Singh was void in terms of Section 11 of the Hindu Marriage Act, 1955 (for short 'Act of 1955') on the ground of violation of Clause (i) of Section 5 of the Act of 1995 i.e. second marriage during subsistence of first marriage with petitioner No.4. 5. As regards the question of legitimacy of child born from the said void marriage is concerned, as per Section 16 of the Act of 1955, which reads as under, the said child would be legitimate. "16. Legitimacy of children of void and voidable marriages – (1) Legitimacy of children of void and voidable marriages. 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, whether such child is born before or after the commencement of the Marriage Laws. (Amendment) Act, 1976, (68 of 1976) and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. (Amendment) Act, 1976, (68 of 1976) and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. (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 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 (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 would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents." 6. In light of Section 16 of the Act of 1955. I do not find any illegality in the orders passed by both the Courts below warranting interference in exercise of revisional jurisdiction. 7. Consequently, the revision is liable to be dismissed and the same is hereby dismissed. No order as to costs. 8. Certified copy as per rules. Revision Dismissed.