Can Declaratory Decree For Adding Children From Void Marriage To Service Record Be Refused Despite S. 16 HMA? : Allahabad HC To Decide

Admitting a second appeal on this question of law, a bench of Justice Kshitij Shailendra posted the matter for final hearing in the second week of January 2025 while summoning the appellate court's and the trial court's records.

The Court was essentially dealing with an appeal filed by one Mukesh Kumar, an ex-serviceman who had filed a suit claiming a decree for a declaration to the effect that the names of two children be recorded in his service record.

The plaintiff-appellant argued that since he had no children from his first marriage, it was essential to register the names of his children from his second marriage in his service records to ensure they could receive pensionary benefits.

Both courts below discarded the claim that these two children were born out of a second marriage performed by the plaintiff-appellant during the subsisting first marriage; hence, the second marriage is void.

However, before the High Court, the counsel for the appellant-plaintiff submitted that even if the second marriage was void, Section 16 of the 1955 Act [Legitimacy of children of void and voidable marriages] protects the legitimacy of children born out of such void marriage for all purposes.

Thus, it was argued that the impugned decrees are in the teeth of the statute governing such aspects.

Finding merits in the argument and noting that the matter requires consideration, the single judge framed the following question for consideration:

"Whether the courts below were justified in denying the decree in view of the legitimacy attached to the children born out of void marriage, particularly in view of Section 16 of Hindu Marriage Act, 1955?"