2011(3) ALL MR 365
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.S. DALVI, J.
Smt. Nanda Santosh Shirke Vs. Smt. Jayashree Santosh Shirke & Anr.
Miscellaneous Petition (Lodging) No.294 of 2010
15th February, 2011
Petitioner Counsel: Mr. VIKRAM PAI
Respondent Counsel: Mr. INDU PRAKASH,Mr. C. K. TRIPATHI
Hindu Marriage Act (1955), S.1 - Marriage - Proof - Certificate of Sarpanch showing that the Respondent is the first wife of the deceased, held, cannot be accepted in the absence of any evidence from public record. (Para 10)
JUDGMENT :- The Petitioner has filed this petition for revoking the order dated 3rd October, 2008 passed in Miscellaneous Petition No.31 of 2007, granting legal heirship certificate under Bombay Regulation Act VIII of 1927 to the Respondent and for other ancillary reliefs. The Petitioner claims to be the legally wedded wife of the deceased Santosh Atmaram Shirke, who expired on 21st August, 2005. The Petitioner claims that the deceased died leaving behind her and her three children Shraddha, Devyani and Siddhesh Shirke as his only surviving heirs and legal representatives.
2. She claims to have been married to the deceased as per Hindu Vedic rites on 8th March, 1992 at Adarsha Vivaha Karyalaya above Khandelwal Sweet Shop, Opposite Station, Thane (West). The Petitioner has produced a certified copy of her marriage certificate which was issued by the Marriage Registrar, Thane. The marriage is shown to have been solemnised on 8th March, 1992. The Petitioner had three children from the said marriage. The Petitioner has produced the birth certificates of her three children. The Petitioner would, therefore, be the legally wedded wife of the said deceased Santosh Shirke.
3. The Respondent filed her application being Miscellaneous Petition No.31 of 2007 claiming that she was married to the deceased in Ratnagiri. Her marriage was unregistered. She has not given the date of her marriage. She has produced a certificate of the Sarpanch of the Gram Panchayat, Village Chiveli, Taluka Chiplun, District Ratnagiri. She also claims to be having three children from her union with the deceased being Priyanka, Dipali and Heeramb Shirke. She has produced copies of the birth certificates of the three children issued by the Panchayat Samiti, Chiplun. She claims that the deceased had failed and neglected to maintain her as his wife and she had filed an application under Section 125 of the Criminal Procedure Code and obtained a maintenance order from the Court of the Judicial Magistrate, First Class, Chiplun in Miscellaneous Petition No.41 of 2004. She has relied upon a copy of the order dated 19th May, 2005 granting her maintenance of Rs.1,500/- and granting her children maintenance of Rs.750/- each.
5. It may be mentioned that the certificate issued by the Sarpanch, Gram Panchayat, which is produced by the Respondent is not the proof of her marriage. It only shows that as per the electoral voters list she is shown to be residing with the deceased. The certificate of the village Sarpanch shows that she was the first wife of the deceased without reference to any Government record kept in the normal course of the conduct of the Government. Both these certificates cannot be accepted as proof of her marriage.
6. However, it is seen that she has begotten three children in the years 1987, 1993 and 1995, showing her as their mother and the deceased as their father. These certificates and also the voters list reflected in the certificate of the Gram Panchayat show continuous residence of the Respondent with the deceased. The certificates would show that the children were begotten from her union with the deceased. There would be presumption of legitimacy of the children of the Respondent, though marriage of the Respondent with the deceased, if at all, would be void.
7. The brief and precise Supreme Court judgment in the case of Badri Prasad Vs. Dy. Director of Consolidation, (1978)3 SCC 527, considered the presumption of wedlock and the consequent legitimacy of the children. It was observed that there was a strong presumption of lawful wedlock between a man and a woman who lived together for 50 years. However, that was not a case of two marriages of a single man.
8. In the case of Rameshwari Devi Vs. State of Bihar, decided on 27th January, 2000, the Supreme Court considered the case of two wives claiming to be married to a single deceased and claiming to be entitled to a share of the family pension and the death-cum-retirement gratuity payable to the deceased. It was held that the children born to the lady who claimed to be the second wife of the deceased, were entitled to a share in the family pension and the death-cum-retirement gratuity until they attained majority, but the lady claiming to be the second wife was not entitled to anything. Four sons were born to her through such union. It was, however, observed that her marriage was in contravention of Section 1(i) of the Hindu Marriage Act (HMA) and was consequently a void marriage. However, the children of such void marriage were legitimate under Section 16 of the HMA Act and consequently, they succeeded to the estate of the deceased father as heirs under Section 8 of the Hindu Succession Act. Hence it was held that though the lady claiming to be the second wife was not entitled to succeed to his estate as the widow of the deceased, her marriage being void, her children being taken as legitimate sons, would be entitled to an equal share along with the first lawfully wedded wife and her children.
9. In the case of Vidhyadhari Vs. Sukhrana Bai, 2008(3) Maharashtra Law Journal 1, also two ladies claimed to be the wives of the deceased. The deceased had nominated his terminal benefits in favour of his second wife. The second wife stayed with the deceased through the years and had borne four children through such union. It was observed that during the subsistence of the first marriage, the deceased had married another woman and hence that marriage was void. It was held that the first wife, who was legally wedded to the deceased, was entitled to 1/5th of his estate despite nomination in favour of the second wife whose marriage was void and the four children of the second wife were entitled to 4/5th of his estate. This would have been so upon considering the legitimacy of the children.
10. In this case, both the Petitioner and the Respondent claim to be married to the deceased. Whereas the Petitioner has produced the marriage certificate of the Marriage Registrar, Thane, the Respondent has only produced a so-called certificate of Sarpanch about her residential status. Both the Petitioner and the Respondent have produced the birth certificates of their children. Though the Respondent has also produced an order of maintenance, showing that she claimed to be his wife and had applied for and obtained an order of the Court in that behalf for herself and her children, the marriage of the Respondent with the deceased has not been shown. The date of the marriage is not disclosed. The certificate of the Sarpanch showing that she is the first wife of the deceased cannot be accepted in the absence of any evidence from public record.
11. The Petitioner being the legally wedded wife of the deceased would be entitled to succeed to his estate along with her three children. The three children of the Respondent would also be entitled to succeed to his estate upon the presumption of legitimacy. The Respondent herself would not be entitled to succeed to his estate as her marriage, if any, is void.
14. The Petitioner and all the six children shall be entitled to obtain the legal dues payable to the deceased Santosh A. Shirke in equal share. The pension shall be payable only to the Petitioner as per the Maharashtra Civil Service Pension Rules, 1982. Order accordingly.