SHALINI BALLIKAR Vs. AIDEM NAIQUE

JUDGEMENT

(1.) The appellants are the original defendants. The respondent/original plaintiff filed a Suit bearing No. 97/86 in the Court of Civil Judge, junior Division at Margao for a declaration that the marriage of appellant No. 1 with late Raju Shannu Naique solemnized on 11th june, 1981 is null and void and for a consequential direction to the civil Registrar of Salcete and Margao to cancel the said marriage registered under No. 629 in the marriage Registration Book of the year 1981 and also for a declaration that the legitimisation of the illegitimate children from this marriage is null and void. The appellants herein/original defendants contested the suit. The trial Court was pleased to dismiss the suit including the counter claim filed by the appellant No. 1. Against the said Judgment and order, the respondent/plaintiff filed an Appeal bearing No. 73/1998 in the Court of the Addl. District Judge, Margao who by his Judgment and order dated 1st December, 1999 and Decree dated 13th December, 1999 allowed the appeal and set aside the Judgment and order passed by the Civil Judge, Junior Division, Margao. Against the said order, the appellants have preferred this Second Appeal in this Court. The Second appeal was admitted by this Court on 21st September, 2000 and substantial question of law as formulated in Clause (f) of the appeal memo was framed which reads as under: whether the legitimisation of appellants Nos. 2 and 4 could be invalidated when Article 31 of the Law of Marriage No. 1 states that even illegitimate children of void or voidable marriage get status of legitimate children, even though such a marriage was not contracted bonafide by one or both the spouses.

(2.) The learned Counsel appearing on behalf of the appellants invited my attention to Article 31 of family Laws No. l. Article 31 is included in chapter IV which deals with the effect of annulment specially with respect to the fate of minor children. Article 31 reads as under : however, the children of a void or voidable marriage shall always be legitimate, although they were born before the marriage and even if it has not been contracted bonafide by one or by both of the spouses. Sole paragraph. However, children of persons included in clauses 1 and 2 of Article 4 are excluded, who shall have only the rights referred to in Articles 50 to 52 of Decree No. 2 of this date.

(3.) He also invited my attention to the plaint and to the evidence which is brought on record in which the plaintiff herself has admitted that the appellants Nos. 2 to 4 were born out of the marriage between the appellant No. l and the late husband of the plaintiff. He submitted that though he does not wish to challenge the decree passed in terms of prayers Clause (a) of the plaint he submits that the decree in terms of prayer Clause (b) of the plaint is liable to be set aside in view or the article 31 of the family Laws.