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2019 DIGILAW 76 (AP)

Nagapatla Venkata Chalam v. Nagapatla Saroja

2019-06-06

J.UMA DEVI, M.SEETHARAMA MURTI

body2019
JUDGMENT : M. Seetharama Murti, J. 1. The unsuccessful petitioner filed this appeal under Section 19 of the Family Courts Act, 1984, assailing the order, dated 9.11.2012, of the learned Judge, Family Court-cum-V Additional District Judge, Tirupati of Chittoor District. 2. We have heard the submissions of Sri K.S. Gopalakrishna, learned Counsel appearing for the appellant-petitioner and of the learned Standing Counsel for Railways appearing for the 3rd respondent. Though respondents 1 and 2 are served with notices, neither a counter-affidavit is filed nor is a representation made on their behalf on an earlier date of hearing, that is, on 16.11.2017; and, on that day the delay in filing the appeal is condoned by allowing FCA MP No. 176 of 2013 and fresh notices were ordered in the appeal. Proof of service is filed showing that the 1st respondent has not claimed the notice sent to her and that the notice sent to the 2nd respondent is delivered as per postal track report. They have not entered appearance. 3. We have perused the material record. 4. The parties in this appeal shall hereinafter be referred to as arraigned in the original petition. 5. To begin with, it is necessary to refer to the pleadings, this appeal being a first appeal. 6. The case of the petitioner is this : 'He is the son of Nagapatla Venkatapathi ('the deceased', for brevity) and his wife Saroja, the 1st respondent. The deceased worked as Gateman in the 3rd respondent-South Central Railways and died, on 7.3.2007, in harness. The date of birth of the petitioner is 15.2.1982. He studied upto 8th class and later appeared for 10th class (SSC examination) privately. All educational and Government records reflect that he is the only son of the deceased and the 1st respondent, who are also having daughters. The deceased has shown the petitioner as his son in all his service records and in the records related to Railway pass. After the death of the deceased, there were disputes between the family members. Hence, Succession OP No. 271 of 2000 [SOP] was filed before the present Family Court. The said SOP was settled before the Lok Adalat Bench, Mandal Legal Services Committee, Tirupati, and an Award, dated 17.7.2004, was passed in terms of the memorandum of compromise. After the death of the deceased, there were disputes between the family members. Hence, Succession OP No. 271 of 2000 [SOP] was filed before the present Family Court. The said SOP was settled before the Lok Adalat Bench, Mandal Legal Services Committee, Tirupati, and an Award, dated 17.7.2004, was passed in terms of the memorandum of compromise. As per the terms of the said Award, the petitioner is entitled for appointment in the 3rd respondent Railways on compassionate grounds as the respondents 1 and 2 herein stated no objection for the employment of the 5th petitioner therein, that is, the petitioner herein on compassionate grounds. They had also submitted applications to the 3rd respondent Railways. All the records including the Award of the Adalat are produced before the said respondent alongwith several representations. The 3rd respondent Railways is raising un-necessary queries and frivolous objections, though their record evidences the fact that the petitioner is the son of the deceased Railway employee. At the instance of the 3rd respondent Railways and for the reasons best known to them, the respondents 1 and 2 started acting adverse to the interests of the petitioner. The 3rd respondent Railways, without proper appreciation of facts, issued notice, dated 4.1.2007, refusing to consider the petitioner's case for compassionate appointment. Hence, he filed the instant FCOP for declaring that he is the legitimate son of the deceased and is consequently entitled to appointment in the 3rd respondent Railways on compassionate grounds.' 7. The 1st respondent filed a counter. The same was adopted by the 2nd respondent. Their case is this : "The material allegations including the allegation that the petitioner is the son of the deceased and the 1st respondent and that he was shown as the son of the deceased in the service records and in records relate to Railway pass are all absolutely false. The 1st respondent is the legally wedded wife of the deceased. They were blessed with two daughters, N. Radhamani and the 2nd respondent. The said 1st daughter is living with her husband. The 2nd respondent is unmarried. The 1st respondent received all the death benefits and is also drawing pension regularly. The 1st respondent and four others filed the SOP. It was settled before the Adalat. The petitioner is the son of the deceased and one Shaik Shahajadi Begum with whom the deceased had an illegal contact. The 2nd respondent is unmarried. The 1st respondent received all the death benefits and is also drawing pension regularly. The 1st respondent and four others filed the SOP. It was settled before the Adalat. The petitioner is the son of the deceased and one Shaik Shahajadi Begum with whom the deceased had an illegal contact. The 1st respondent has not given birth to the petitioner and she is not his mother. The Divisional Officer, Personnel Branch of Railways, Guntakal, sent a letter, dated 4.1.2007, stating that the petitioner is not the son of the 1st respondent and that if a false effort is made to claim the death benefits like compassionate appointment by hiding the facts, the 1st respondent would be liable for suitable action. After the 3rd respondent Railways refused to give compassionate appointment to the petitioner, the 2nd respondent applied for appointment in the Railways and her said request is pending. The petitioner is not the legitimate son of the deceased. The 1st respondent reserves liberty to take necessary action against the petitioner for the false claim and false allegations made by him. The petitioner approached the Court with unclean hands and suppressed the facts.' 8. The case of the 3rd respondent Railways is this: The material allegations in the petition are false. The allegations that the petitioner is the son of the deceased and the 1st respondent, and that he was born to them, on 15.2.1982, and that his educational records and other Government records evidence the said fact and that the respondents 1 and 2 are acting against his interests at the instance of this 3rd respondent Railways and the other material allegations made in the petition are all false. The deceased died, on 7.3.1997, while working as Gateman. His wife, the 1st respondent, submitted an application, on 26.5.2006, seeking appointment for the petitioner on compassionate grounds. The dues were settled and arranged to be paid to the 1st respondent. In the application, to which the Award of the Adalat passed in the SOP was attached, it was mentioned that the petitioner is entitled to employment on compassionate grounds. The Railway administration is not a party to the said OP. Hence, it is not bound to implement such orders, which are not binding on it. It has got its own procedure for dealing with compassionate appointments. The Railway administration is not a party to the said OP. Hence, it is not bound to implement such orders, which are not binding on it. It has got its own procedure for dealing with compassionate appointments. The report that was received on making enquiries disclosed that the petitioner is not born to the deceased and his legally wedded wife, the 1st respondent, and that he is the son of a Muslim servant maid. Since the wife, that is, 1st respondent, and her children are only eligible for appointment on compassionate grounds, the petitioner was given a reply with regrets vide officer letter, dated 4.1.2007. 1st respondent then submitted an application, dated 19.2.2007, seeking appointment on compassionate grounds in favour of the 2nd respondent, who is her daughter. Hence, the petition may be dismissed. 9. At trial, petitioner and his supporting witness were examined as PWs. 1 and 2 and Exhibits A1 to A14 were marked. The 1st respondent and her supporting witness were examined as RWs. 1 and 2. No documents were marked on behalf of the respondents. 10. On merits and by the order impugned in this appeal, the petition was dismissed. Therefore, the aggrieved petitioner is before this Court. 11. We have gone through the record. 12. Learned Counsel for the petitioner, placing reliance on the service records of the deceased wherein the petitioner was shown as the son of the deceased and also on the Lok Adalat Award wherein the parties therein including Shaik Shajadi Begum agreed that the petitioner is the son of the deceased, sought to contend that the petitioner is the legitimate son of the deceased. However, in the terms of compromise pursuant to which the Award has come to be passed, there is no mention that the petitioner is the son of the deceased and the 1st respondent herein; it is only stated in the memorandum of compromise between the parties that the 1st respondent is the wife of the deceased and that the three daughters and the petitioner are the children of the deceased. In the Award it is inter alia stated that Shaik Shajadi Begum is not entitled to claim any benefits from South Central Railway and that she confirms the succession certificate issued to the petitioners therein. In the Award it is inter alia stated that Shaik Shajadi Begum is not entitled to claim any benefits from South Central Railway and that she confirms the succession certificate issued to the petitioners therein. Learned Standing Counsel for the 3rd respondent Railways contended that the enquiries made by the Railway administration revealed that the petitioner is the illegitimate son of the deceased through one Shaik Shajadi Begum and that he is not the son of the deceased & the 1st respondent, who is the legally wedded wife of the deceased. As rightly contended by the learned Standing Counsel, since the petitioner is the son, though illegitimate, the deceased has shown the petitioner as his son in the records and hence, the said fact does not entitle the petitioner to claim that he is a legitimate son of the deceased through the 1st respondent. In fact, on one hand, the 1st respondent has specifically denied the claim of the petitioner and further stated that she is not the biological mother of the petitioner; and, on the other hand, Shaik Shajadi Begum, who is a party to the SOP, claimed therein that the petitioner is her son and that she is interested in his compassionate appointment. 13. On careful analysis of the facts and the oral & documentary evidence, we find that the evidence makes it manifest that the petitioner is the son of the deceased and Shaik Shajadi Begum and that the 1st respondent is not the mother of the petitioner and that is the reason why it is not specifically mentioned in the memorandum of compromise filed before the Adalat that he is the son of the deceased and the 1st respondent. In the facts and circumstances of the case, we hold that the petitioner could not establish that he is the legitimate son of the deceased. In the facts and circumstances of the case, we hold that the petitioner could not establish that he is the legitimate son of the deceased. Be it noted that the Family Court analyzed the facts, the oral & documentary evidence including the evidence of the official of the Railways, who is summoned to give evidence, and also the contents of the service records & records of the Department and noted in the impugned order that all the records disclosed that the petitioner was shown as the son of the deceased; that the Adalat Award also discloses that the 1st respondent herein is the legally wedded wife of the deceased and that one Revati, the 2nd respondent and another & the petitioner are their children and that the 1st respondent is entitled to the death benefits & family pension besides other benefits and that the petitioner herein being the son of the deceased is entitled for employment on compassionate ground and that as per the condition of the Award, Shaik Shajadi Begum confirmed the succession certificate issued in favour of the petitioners, on 14.11.2000, and stated that she has no objection for the 3rd respondent Railways acting upon it. However, the Family Court in the very same impugned order also noted that Exhibit A12-photocopy of Award, dated 17.7.2004, shows that Sri M. Purushotham Reddy, Advocate, who filed the present petition had defended Shaik Shajadi Begum in SCOP and that in the SOP, Shaik Shajadi Begum, who was said to be the servant maid and with whom the deceased had illegal contact, was represented by an Advocate and that she had claimed that the petitioner herein is her son and that she is interested in getting appointment for him in Railways on compassionate grounds and hence, she raised the dispute and that the Advocate who appeared for her in the SOP filed the present OP on behalf of the petitioner herein. The Family Court further noted that the 1st respondent herein filed IA No. 786 of 2010 requesting to direct the parties to undergo DNA test and obtain an opinion from an expert as to whether the 1st respondent is the biological mother of the petitioner and that though the said petition was allowed and the parties were directed to undergo the said test by giving samples of blood to the Superintendent, SVRRGG Hospital, Tirupati, for being forwarded to the Regional Forensic Science Laboratory for analysis and report, the petitioner failed to come forward to submit to the said test. Having so noted, the Family Court has drawn an adverse inference against the petitioner, and eventually held that the petitioner failed to prove that he is the legitimate son of the deceased and the 1st respondent. The Family Court also considered the legal aspect and further held that since the 1st respondent is not the biological mother of the petitioner, the petitioner is not entitled to the relief claimed and accordingly declined to grant the declaration as sought for by the petitioner and dismissed his OP duly recording a finding that the petitioner failed to prove that he is the legitimate son of the deceased & the 1st respondent. For the sustainable reasons assigned by us and for the reasons mentioned above of the Tribunal, it can safely be held that the petitioner is the son of the deceased and one Shaik Shajadi Begum. 14. As a sequel to the said finding it must be held that the petitioner is not entitled to the declaration that he is the legitimate son of the deceased. In consequence, it must also be held that he is not entitled to the consequential relief seeking employment on compassionate ground. 15. Learned Counsel for the petitioner alternately contended as follows:--'Even the 3rd respondent Railways is contending that the petitioner is the son of the deceased and the Muslim servant maid of the deceased. In consequence, it must also be held that he is not entitled to the consequential relief seeking employment on compassionate ground. 15. Learned Counsel for the petitioner alternately contended as follows:--'Even the 3rd respondent Railways is contending that the petitioner is the son of the deceased and the Muslim servant maid of the deceased. Since it is established that the petitioner is an illegitimate son of the deceased having been born to the deceased and Shaik Shajadi Begum, he is entitled to compassionate appointment under facts & in law and in view of the Adalat Award, which is binding on the parties to the Award namely, the family members of the deceased and his mother, Shaik Shajadi Begum.' He further requested to mould the relief and grant the relief of compassionate appointment to the petitioner on the basis that he is the illegitimate son of the deceased through Shaik Shajadi Begum. However, the fact of the matter is that the Railway Administration refused to give appointment to the petitioner on compassionate ground for the reason that the wife and children of the deceased employee are only eligible for such appointment and that, as per their procedures and instructions governing the matter, an illegitimate child cannot be given appointment on compassionate grounds. They are also contending that after rejection of the claim of the petitioner, the 2nd respondent, daughter of the deceased and the 1st respondent, made an application for compassionate appointment and that her application is pending. But the learned Counsel for the petitioner strongly contended that in the face of the Award of the Adalat in the SOP, by which the parties namely the petitioner and the respondents 1 and 2 are bound, the 2nd respondent cannot make a claim for her appointment contrary to the terms of the Award. Nonetheless, the Railway Administration is not a party to the SOP. The Adalat disposed of the SOP in terms of compromise between the parties, namely: the wife and children of the deceased and one Shaik Shajadi Begum. Nonetheless, the Railway Administration is not a party to the SOP. The Adalat disposed of the SOP in terms of compromise between the parties, namely: the wife and children of the deceased and one Shaik Shajadi Begum. In fact, the parties to the SOP made an internal arrangement by means of compromise, in the absence of Railway administration as a party to the SOP and hence, as rightly contended, the Railway administration is not bound by the terms of the Award in the SOP and it has to deal with the claim for compassionate appointment as per law & procedure. Hence, it is apt to note that merely based on the Award to which the Railway administration is not a party, the petitioner cannot claim compassionate appointment without establishing his claim as per law. 16. Dealing further with the alternate claim, it is to be re-noted that the petitioner having claimed a declaration that he is the legitimate son of the deceased and the consequential relief for compassionate appointment on that score, did not take steps to amend the pleadings in support of the present alternate claim for compassionate appointment on the basis that he is an illegitimate son of the deceased. Learned Standing Counsel for the Railways contended that the petitioner cannot raise the alternate contention and take it by surprise and that if the moulding of the relief on a mere oral request is granted without amendment of the pleadings and without affording an opportunity to the Railways to meet the said alternate contention, it causes great prejudice to the Railway Administration. 17. Taking up the alternate contention of the petitioner for examination on its merit, it is to be first noted that this alternate contention is based on the provision of Section 16 of the Hindu Marriage Act, 1955. No doubt there is sufficient evidence brought on record to safely conclude that the petitioner is the son of the deceased and the said Shaik Shajadi Begum and that he was born to them during the subsistence of the marriage of the 1st respondent with the deceased and that, therefore, he is the son born to the deceased through Shaik Shajadi Begum, who is said to be his servant maid and with whom the deceased had an illegal contact. 18. 18. But the important question is as to whether the petitioner can claim the benefit, which is available to children who fall under the category of legitimate children under the provisions of the Hindu Marriage Act, in view of the fact that as per the provisions of the said Act, an illegitimate child to be considered as a legitimate child must have been born, after a marriage between his father and the mother, whether void or voidable. We shall take up this important question a little later. 19. Now, in view of the contention of the Railways that as per their procedures and instructions only the legitimate children of the deceased are eligible for appointment on compassionate grounds and not illegitimate children born from a marriage, which is null and void, and that there are circulars prohibiting giving appointments on compassionate grounds to such illegitimate children of the deceased employees, the short question is as to whether the said contention is tenable under law. We shall take up this question now for adjudication. 20. It appears that the answer to the question is no longer res Integra. In the decision of the Supreme Court in Union of India and another v. V.R. Tripathi, AIR 2019 SC 666 , the facts are as follows :-- 'Ram Lakhan Tripathi, the father of the respondent, was employed as Technician, Grade-I, in Central Railways at Mumbai. He died in harness, on 28.11.2009. He contracted a second marriage during the subsistence of his first marriage. The respondent is the son born from the second marriage, which the employee contracted in 1987. He applied for compassionate appointment on the death of his father. His application was rejected in March, 2012, by the Railway authorities. He filed original petition before Central Administrative Tribunal [CAT]. CAT allowed the said petition. A review petition is also dismissed. Union of India and Railways instituted a writ petition before Bombay High Court. He applied for compassionate appointment on the death of his father. His application was rejected in March, 2012, by the Railway authorities. He filed original petition before Central Administrative Tribunal [CAT]. CAT allowed the said petition. A review petition is also dismissed. Union of India and Railways instituted a writ petition before Bombay High Court. The Bombay High Court, having referred to Section 16 of the Hindu Marriage Act, 1955, which recognized the legitimacy of a child born from the Marriage which is null and void under the provision of Section 11, further noted, that the circular of the Railway Board, dated 2.1.1992, instructing not to forward to Railway Board, the cases for compassionate appointment to the second widow or her wards was set aside by a Division Bench of the Calcutta High Court in Namita Goldar v. Union of India, (2010) 1 Cal. LJ 464 and that in the decision in Rameshwari Devi v. State of Bihar, (2000) 2 SCC 431 , the Supreme Court upheld the entitlement of the family of a deceased employee to pensionary benefits notwithstanding the fact that the deceased had, during his life time, contracted a second marriage. Having so noted, the Bombay High Court found no reason to differ with the view of the CAT. Aggrieved thereof, Union of India and the Railways filed Civil Appeal [SLP(c)] before the Supreme Court.' In this backdrop of facts, the Supreme Court analyzed the law and noted that once the circular, dated 2.1.1992, was struck down in Namita Goldar's case (supra), and the same was accepted and has been implemented, it was not thereafter open to the Railway authorities to rely upon the same circular, which has all India force and effect. The Supreme Court also held that it was improper on the part of the Railway Board to issue a fresh circular in April, 2013 reiterating the terms of earlier circular of January, 1992 even after the decision in Namita Goldar's case (supra), which attained finality. Having so held, the Supreme Court dismissed the civil appeal of the UOI and the Railway. 21. In the decision in Yuvraj Dajee Khadake v. The Union of India, 2019 (2) SCT 134 (Bom.), the facts are as follows :--'The writ petitioner's father, who was in the employment of Central Railway, died in harness, on 12.8.2003. He made an application for grant of appointment on compassionate ground. 21. In the decision in Yuvraj Dajee Khadake v. The Union of India, 2019 (2) SCT 134 (Bom.), the facts are as follows :--'The writ petitioner's father, who was in the employment of Central Railway, died in harness, on 12.8.2003. He made an application for grant of appointment on compassionate ground. The same was rejected on the ground that the marriage of the mother of the petitioner with the deceased employee was solemnized during the subsistence of first marriage of the father of the petitioner. The High Court of Bombay following the Division Bench decision of the Bombay High Court in V.R. Tripathi's case (supra), which was confirmed by the Supreme Court in the aforestated civil appeal, directed the respondent Railways to consider the case of the petitioner afresh for grant of compassionate appointment. 22. It is apt to now refer to Sections 11, 12 and 16 of the Hindu Marriage Act, 1955, which read as under: "Sec. 11: Void marriages.--Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5. 12. Voidable marriages.--(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely: (1)(a) that the marriage has not been consummated owing to the impotence of the respondent; or (b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5, as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner. Sec. 16: 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, whether such a 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. (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 of 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." 23. In view of the legal position enunciated in the decision of the Supreme Court supra and the provision of Section 16(1) of the Hindu Marriage Act, it is clear that 'a child born from a marriage which is null and void is a legitimate child'. Therefore the contention of the Railway Administration that such an illegitimate child born from a marriage, which is null and void, is not entitled to appointment on compassionate ground is untenable. But the question here is as to whether the present petitioner is such a child born from a marriage, which is null and void, and is, therefore, a legitimate child as per the provision of the afore-stated section of law. 24. Now we shall revert to the important question, which we postponed adjudication to this stage. But the question here is as to whether the present petitioner is such a child born from a marriage, which is null and void, and is, therefore, a legitimate child as per the provision of the afore-stated section of law. 24. Now we shall revert to the important question, which we postponed adjudication to this stage. The amendment to Section 16 has been introduced and was brought about with the obvious purpose of removing the stigma of illegitimacy on children born in void or voidable marriage. Therefore, the question now is-'whether the petitioner in the instant case could be extended the benefit of the said section of law?' 25. In the case on hand, it is borne out by record that the petitioner is born to the deceased through Shaik Shajadi Begum out of illegal contact or adultery. It is also borne out by record that the said Shaik Shajadi Begum was the maid servant of the deceased. It is not the case of the parties herein that there was a marriage, void or voidable, between the deceased and the said Shaik Shajadi Begum. Further, by the time the petitioner was born to them and till the death of the deceased, the marriage of the deceased with the 1st respondent was subsisting. 26. What is to be noted from the legal position enunciated is that a child if born out of a marriage, which is null and void, under Section 11, is legitimate under Section 16 of the Hindu Marriage Act. The second half of the section says that "whether or not a decree of nullity is granted in respect of that matter under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act." On a plain reading of the provision of Section 16, as amended in the year 1976, makes it apparent that the object of Section 16, of the Hindu Marriage Act, 1955, is to protect legitimacy of the children born of void or voidable marriages and that the benefit given under the amended Section 16 is available only in cases where there is a marriage and when such marriage is void or voidable in view of the provisions of the Act. Nonetheless, if there is no marriage, may be void or voidable, then, this benefit of deemed 'legitimacy' will not be available to the children, who are begotten out of any physical relationship of a man and a woman. Thus, Section 16 of the Hindu Marriage Act does not confer the benefit of legitimacy on a child bora out of any physical relationship between a man and a woman, who are not married. Consequently, for the benefit of legitimacy to inure to such illegitimate child, such a child must have been born, after a marriage between his father and mother, whether void or voidable. In view of the facts and the legal position adverted to supra, we find that even the alternate contention of the petitioner that he is the illegitimate son of the deceased and his mother, Shaik Shajadi Begum, and hence, he is entitled to compassionate appointment does not come to his aid as from the facts borne out by the record it is noticeable that there is no marriage void or voidable between the deceased and the mother of the petitioner. 27. For all the afore-stated reasoned findings, we hold that the appeal is devoid of merit and is hence, liable for dismissal. 28. In the result the Family Court Appeal is dismissed. There shall be no order as to costs. 29. Miscellaneous petitions pending, if any, shall stand closed.