JUDGMENT : (Goutam Bhaduri, J.) 1. This appeal is against the judgment and decree dated 30/03/2022 passed by the Judge, Family Court, Balodabazar, in civil suit No.89/2021 whereby the declaratory suit filed by the appellant through next friend was dismissed. 2. The facts of this case, in brief, are that the minor Raunak Yadu, aged about 15 years, represented through his next friend Gulab Yadu, filed a suit for declaration that he was born on 02/12/2006 out of relation between Homeshwar Yadu and Sunita Yadu, who was married. According to the plaintiff, the father of Raunak Yadu namely; Late Homeshwar Yadu was working in Police department. He died in harness on 27/08/2020. The plaintiff claimed that he is the legal heir and in the service book too name of Sunita Yadu, as wife and in her absence name of Raunak Yadu the son (plaintiff) was recorded. The plaintiff sought for compassionate appointment in the department after death of his father and he was directed by the department to produce the necessary certificate of proof so that his appointment can be materialized. In the backdrop of such cause of action, civil suit was filed for declaration as it necessary papers were required by the department. The plaintiff claimed that he was born out of the wedlock of Sunita and Homeshwar and declaration to this effect be issued. 3. In such declaratory suit, public at large and Sunita Verma were arrayed as defendants. Plaintiff further stated that after death of his father Homeshwar Yadu he was in the custody of his uncle namely; Gulab Yadu (bade pitaji), who is elder brother of late Homeshwar Yadu. During course of trial, Gulab Yadu was examined and Sunita Verma, the mother who was defendant No. 2 was also examined. 4. The learned trial Court dismissed the suit on the ground that no cause of action has accrued in favour of the plaintiff as to seeking compassionate appointment in the Police department, the plaintiff was directed to obtain succession certificate. 4. The learned trial Court dismissed the suit on the ground that no cause of action has accrued in favour of the plaintiff as to seeking compassionate appointment in the Police department, the plaintiff was directed to obtain succession certificate. The Court observed that since the issue of succession certificate is not within the domain of the Family Court and further held that there is no evidence to the fact that minor Raunak Yadu was born out of relation between Homeshwar Yadu and Sunita Verma and since the relation has been accepted by the plaintiff witness Gulab Yadu, no relief can be granted to this effect as no dispute exists. 5. Learned counsel for the appellant would submit that the plaintiff has examined the witness to show that Raunak Yadu was born out of the wedlock of Homeshwar Yadu (since deceased) and Sunita Verma. It is stated the mother also testified the fact that child was born out of her marriage with Homeshwar Yadu, therefore, those evidence being unrebutted, there was no occasion before the learned trial Court to disregard the same. He would further submit that the birth certificate was also produced as Ex. P/2, which shows the name of the mother and father and in absence of rebuttal of the same, it would be admissible in evidence. Accordingly, the declaratory decree should have been passed in favour of the plaintiff. 6. Learned counsel appearing for the respondent No.2/Sunita Verma would submit that the statement would show that the child was born out of their relation and those facts were not rebutted. However, she would submit that there has been a separation in between the parties i.e. Homeshwar Yadu and Sunita Verma and the child was in custody of the brother of the husband, therefore, a separate proceeding is pending in a custody battle before the trial Court. 7. We have heard learned counsel for the parties, perused the evidence and the record. 8. The minor came through his next friend claiming a declaratory relief that he be declared as legitimate son of Homeshwar Yadu and Sunita Verma. Sunita Verma was examined being the mother. The brother of Homeshwar Yadu Gulab Yadu stated that on 27/08/2020 Homeshwar Yadu died and Raunak Yadu is his nephew. 8. The minor came through his next friend claiming a declaratory relief that he be declared as legitimate son of Homeshwar Yadu and Sunita Verma. Sunita Verma was examined being the mother. The brother of Homeshwar Yadu Gulab Yadu stated that on 27/08/2020 Homeshwar Yadu died and Raunak Yadu is his nephew. He affirms the fact that minor Raunak Yadu is son of Homeshwar Yadu, who was working with Police department and after his death, when an application was filed for compassionate appointment and he was directed to get the certificate from the Court, consequently the suit was filed. He affirmed the fact that Raunak Yadu is the only legal heir of Homeshwar Yadu (deceased). The plaintiff produced the birth certificate 02/12/2006 (Ex.P/2), wherein the name of father is shown as Homeshwar Yadu and name of mother is shown as Sunita Yadu. The said document being the copy of the public document would also carry of presumption of correctness. 9. The mother of plaintiff namely; Sunita Verma, who was arrayed as defendant No. 2, was examined in the case. Reading her statement would show that she stated that she was wife of Homeshwar Yadu. They performed the marriage on 06/03/2004 and since the marriage was not accepted by the community and the family members, they were cornered to be an out caste. As per statement, out of their relation, a child was born namely; Raunak Yadu. Homeshwar Yadu died in an accident but at that time when she wanted to take the custody of child but she was denied. In the cross-examination of the witness she stated that she was married to Homeshwar Yadu, however, because of differences in the compatibility they got separated in 2010. She also stated that she had filed an application for custody of the child. According to her, she had filed an application under Section 13 of the Hindu Marriage Act, 1955 seeking divorce before the 2nd Additional District Judge, Balodabazar, which was dismissed vide Ex.P/5. 10. She also stated that she had filed an application for custody of the child. According to her, she had filed an application under Section 13 of the Hindu Marriage Act, 1955 seeking divorce before the 2nd Additional District Judge, Balodabazar, which was dismissed vide Ex.P/5. 10. Perusal of the statement along with the documents would show that specific relation in between the parties was expressed by the defendant No.2, therefore, when the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person who has the member of the family or otherwise has special means of knowledge on the subject would be a relevant fact. 11. Section 50 of Indian Evidence Act, 1872 gives the power of the Court to draw such presumption of relation inter se between the parties. Therefore evaluating the statement along with the nature of document i.e. the custody battle papers Ex.D/1 cumulatively shows that Sunita Verma as a mother of plaintiff made a statement that the child was born out of the relation with Homeshwar Yadu. Apart from that the matrimonial dispute was also brought to the fore meaning thereby the relation between the parties was related by way of statement and the documentary evidence coupled with the conduct of the parties. Consequently, those statements and the documents would lead to draw a presumption in favour of plaintiff about his relation to be the son of late Homeshwar Yadu who died in harness while in service in the Police department. 12. During the course of evidence, the judgment dated 24/06/2013 (Ex.P.5) passed by the 2nd Additional District Judge, Balodabazar in Civil Suit No.24-A/13 was produced. Reading of the said judgment shows that Sunita filed a suit for divorce against Homeshwar under Section 13 of the Hindu Marriage Act, 1955 on different grounds. The learned 2nd Additional District Judge dismissed the suit holding that it is not proved that Sunita and Homeshwar were legally married. The question, therefore, looms lurge as to what would be the status of the child (plaintiff herein) who was born out of the relation of Homeshwar and Sunita. The defendant mother maintained her stand that the child was born after her marriage with Homeshwar. The question, therefore, looms lurge as to what would be the status of the child (plaintiff herein) who was born out of the relation of Homeshwar and Sunita. The defendant mother maintained her stand that the child was born after her marriage with Homeshwar. During the course of submission, it is stated that the order of the learned 2nd Additional District Judge dated 24/06/2013 was not subject of challenge, therefore, we would not like to deliberate on the legality of such finding except to draw presumption that two persons were live together as husband and wife in consequence of a relation and not in state of concubine. However, since the finding was not subject of challenge even if by admission of fact that the marriage was not valid, what would be the effect of legitimacy of the children. 13. To find out the solution, Section 16 of the Hindu Marriage Act, 1955 would be relevant. Along with growth of civilization, there was a concept of development of legitimacy and the illegitimacy of the children and gradual thinking was substantiated to mitigate the harshness of illegitimate. In such procedure of legitimization Section 16 of the Hindu Marriage Act, 1955 would be relevant, which is quoted below : “16. Legitimacy of children of void and voidable marriages.” (1) Notwithstanding that 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. (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”. 14. Likewise Section 26 of the Special Marriage Act, 1954 also saves the legitimacy of the children of void and voidable marriages and Section 6 (b) of the Hindu Minority and Guardianship Act, 1956 described the natural guardian of illegitimate boy or girl. Section 6(b) is quoted below : “6. Natural guardians of a Hindu minor.— The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are— xxx xxx xxx (b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father”; 15. The Supreme Court had an occasion to consider such type of issues in the matter of Bhogadi Kannababu & Others vs. Vuggina Pydamma & Others reported in AIR 2006 SC 2403 wherein the Court held that even if it is held that the child was born out of the void marriages his status would be legitimate irrespective of the restriction of Sections 5 and 11 of the Hindu Marriage Act, 1955. Therefore, Section 16 of the Hindu Marriage Act, 1955 contains a legal fiction it is by rule of fictio juris the legislature has provided that the children though may be illegitimate for proof of valid marriage shall nevertheless, be treated as legitimate notwithstanding that the marriage is void and voidable. 16. In view of the foregoing discussion, we set aside the order dated 30/03/2022 passed by the learned Family Court, Balodabazar. It is held that Raunak Yadu is the legitimate legal heir of Himeshwar Yadu and Sunita Verma. Accordingly the declaratory decree be drawn in favour of plaintiff. 17. In the result, the appeal is allowed. There shall be no order as to cost(s). 18. A decree be drawn accordingly.