Children Born Out Of Void Marriage Are Legitimate, Compassionate Appointment Cannot Be Denied To Them: SC

In a judgment which was pronounced a month ago, the Supreme Court held that benefit of compassionate appointment scheme cannot be denied to the children born out of a second marriage.

The bench comprising Justice DY Chandrachud and Justice MR Shah dismissed appeals (Union of India vs. V.R. Tripathi) filed by Union of India against Bombay High Court judgment which had held in favour of applicants, who were children born out of second marriage of the deceased employee working with Indian Railways.

Examining the matter, the bench reiterated that that there is no right as such to compassionate appointment but only an entitlement, where a scheme or rules envisaging it exist, to be considered in accordance with the provisions.

The bench then considered the issue whether the condition which has been imposed by the circular of the Railway Board under which compassionate appointment cannot be granted to the children born from a second marriage of a deceased employee (except where the marriage was permitted by the administration taking into account personal law, etc) accords with basic notions of fairness and equal treatment, so as to be consistent with Article 14 of the Constitution?

Children born from a void marriage are legitimate

While answering this issue, the bench took note that, in Section 16(1) of Hindu Marriage Act, it is provided that a child born from a marriage which is null and void under Section 11 is legitimate.

"Once Section 16 of the Hindu Marriage Act, 1955 regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would not be open to the State, consistent with Article 14 to exclude such a child from seeking the benefit of compassionate appointment. Such a condition of exclusion is arbitrary and ultra vires." the court said.

The bench further added that the circular of the Railway Board creates two categories between one class of legitimate children. "Though the law has regarded a child born from a second marriage as legitimate, a child born from the first marriage of a deceased employee is alone made entitled to the benefit of compassionate appointment. The salutary purpose underlying the grant of compassionate appointment, which is to prevent destitution and penury in the family of a deceased employee requires that any stipulation or condition which is imposed must have or bear a reasonable nexus to the object which is sought to be achieved", the court said.

Children do not choose their parents

The bench also addressed the contention raised by Additional Solicitor General that, it is open to the State, as part of its policy of discouraging bigamy to restrict the benefit of compassionate appointment, only to the spouse and children of the first marriage and to deny it to the spouse of a subsequent marriage and the children,

The bench said: "We are here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination."

Unconstitutional discrimination between one class of legitimate beneficiaries

The bench also said that the principle laid down in Rameshwari Devi v State of Bihar, is applicable in this case as well. It added: "The exclusion of one class of legitimate children from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceased employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be offensive to and defeat the whole object of ensuring the dignity of the family of a deceased employee who has died in harness. It brings about unconstitutional discrimination between one class of legitimate beneficiaries – legitimate children."