GOVERDHAN SINGH Vs. HIRAMAN SINGH

JUDGEMENT

(1.) This case involves the interpretation of the true scope and amplitude of Section 16 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act'). The question is : Does the section confer a right in the Hindu Coparcenary property on illegitimate sons born out of unlawful wedlock, and adulterous intercourse.

(2.) The facts and circumstances that give rise to the question are not complicated and may be made plain at the outset: The second defendant Jamnna Bai, is the wife of the first defendant, Parasuram Singh; Hiramal Singh, the plaintiff, is their son. He was born in or about the year 1951. The first defendant developed illicit intimacy with one Bona Bai wife of Kishan Singh. He brought her to his house and kept her as his mistress. The first defendant illtreated the second defendant and necked her out of the house along with the plaintiff. The second defendant took shelter with her parents. Defendants 3 to 5 are the sons of Bona Bai. In course of time the first defendant agreed to give the second defendant the land bearing S.No. 547 situated at Ghanpur village towards her maintenance and she was inducted into possession of the said land. The plaintiff then filed the suit for partition of the joint family properties into two equal shares and delivery of possession of one such share to him. The plaintiff's case is that Bona Bai, the mother of defendants 3 to 5 was not married to the first defendant, that she was only a kept mistress of the first defendant and, therefore, they were not entitled to any share in the joint family property.

(3.) The first defendant remained ex pane. The suit was mainly contested by defendants 3 to 5. It was their case that the first defendant married their mother Bona Bai according to Hindu Dharmasastras and that the mother of the plaintiff Jamuna Bai was not the legally wedded wife of the first defendant, It was their case that since the mother of the plaintiff had already received her share in the lands and went out of the village, they alone are the legal heirs of the first defendant and that the suit was, therefore, liable to be dismissed. The learned District Munsif, on a consideration of the entire evidence adduced in the case held that the suit schedule land is the ancestral property and that Bona Bail the mother of defendants 3 to 5 and Jamuna Bai, mother of the plaintiff are the wives of the first defendant. Accordingly, he granted a decree for partition into 5 equal shares and the the allotment of one such share to the plaintiff. Aggrieved against the said decree, the plaintiff preferred an appeal. The Appellate Court held that the marriage of Bona Bai with the first defendant which/according to her, took place in 1959 after the Hindu Marriage Act, 1955 came into force when her first husband was admittedly living, was void under section 5 read with Section II of the Act. He, therfore. held that the defendants 3 to 5 are illegitimate children of the first defendant and that therefore they are not entitled to any share in the ancestral property. Accordingly the appellate Court granted a decree as prayed for by the plaintiff. Defendants 3 to 5 have now preferred this second appeal.