16. Section 112 of the Evidence Act provides for a presumption of a child being legitimate and such a presumption can only be displaced by a strong preponderance of evidence and not merely by a balance of probabilities as the law has to live in favour of innocent child from being bastardised. In the instant case, as the proof of non-access between Rengammal and Alagarsami had never been pleaded what to talk of proving the same, the matter has not been examined by the High Court in correct perspective. It is settled legal proposition that proof of non-access between the parties to marriage during the relevant period is the only way to rebut that presumption. [vide Mohabbat Ali Khan Vs. Muhammad Ibrahim Khan & Ors. AIR 1929 PC 135; Chilukuri Venkateswarlu Vs. Chilukuri Venkatanarayana AIR 1954 SC 176; Mahendra Manilal Nanavati Vs. Sushila Mahendra Nanavati AIR 1965 SC 364; Perumal Nadar (Dead) by Lrs. Vs. Ponnuswami Nadar (minor) AIR 1971 SC 2352; Amarjit Kaur Vs. Harbhajan Singh and Anr. (2003) 10 SCC 228; Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy and Ors. AIR 2005 SC 800; and Shri Banarsi Dass Vs. Teeku Dutta (Mrs.) and Anr. (2005) 4 SCC 449]
17. The High Court has decided the issue regarding the factum of marriage between Alagarsami and Rengammal only placing reliance upon the statement of Smt. Seethammal, DW1, step mother of Muthu Reddiar who had been disbelieved by the Courts below by giving cogent reasons and taking note of the fact that she had arranged their marriage spending a sum of Rs.10 only. The High Court has also reappreciated the documentary evidence and took a view contrary to the view taken by the court’s below. It was not appropriate for the High Court to re-appreciate the evidence in Second Appeal as no substantial question of law involved therein. Both the Courts below found that Rengammal was legally wedded wife of Alagarsami. The Courts below had placed very heavy reliance upon the witnesses examined by the appellant/plaintiff particularly, Kumarasamy- PW 2 and Kandasamy- PW 5.
18. In view of the fact that the High Court did not even take note of the deposition of the plaintiff’s witnesses, findings recorded by the High Court itself become perverse and thus liable to be set aside.
19. Be that as it may, Section 5(1) of the Act lays down conditions for a Hindu marriage. It provides that marriage may be solemnized between any two Hindus if neither of them is a spouse living at the time of marriage. Section 11 provides that any marriage which is in contravention of Section 5(1) of the Act, would be void. Section 16 of the Act stood amended vide Amendment Act of 1976 and the amended provisions read as under:-
“Legitimacy of children of void and voidable marriages – (1) Notwithstanding that a marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate xxx(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.(3) Nothing contained in sub-section (1) or subsection (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.”
20. Thus, it is evident that Section 16 of the Act intends to bring about social reforms, conferment of social status of legitimacy on a group of children, otherwise treated as illegitimate, as its prime object.
21. In S.P.S. Balasubramanyam Vs. Suruttayan @ Andali Padayachi &Ors. AIR 1992 SC 756, this Court held that if man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate.
22. In S. Khushboo Vs. Kanniammal & Anr. JT 2010 (4) SC 478, this Court, placing reliance upon its earlier decision in Lata Singh Vs. State of U.P. & Anr. AIR 2006 SC 2522, held that live-in-relationship is permissible only in unmarried major persons of heterogeneous sex. In case, one of the said persons is married, man may be guilty of offence of adultery and it would amount to an offence under Section 497 IPC.
23. In Smt. P.E.K. Kalliani Amma & Ors. Vs. K. Devi & Ors. AIR 1996 SC 1963, this Court held that Section 16 of the Act is not ultra vires of the Constitution of India. In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.
24. In Rameshwari Devi Vs. State of Bihar & Ors. AIR 2000 SC 735, this Court dealt with a case wherein after the death of a Government employee, children born illegitimately by the woman, who had been living with the said employee, claimed the share in pension/gratuity and other death-cum-retiral benefits along with children born out of a legal wedlock. This Court held that under Section 16 of the Act, children of void marriage are legitimate. As the employee, a Hindu, died intestate, the children of the deceased employee born out of void marriage were entitled to share in the family pension, death-cum-retiral benefits and gratuity.
25. In Jinia Keotin & Ors. Vs. Kumar Sitaram Manjhi & Ors. (2003) 1 SCC 730, this Court held that while engrafting a rule of fiction in Section 16 of the Act, the illegitimate children have become entitled to get share only in self-acquired properties of their parents. The Court held as under :-
“4………..Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If the marriage itself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardising the children born of the parties to such marriage. Polygamy, which was permissible and widely prevalent among the Hindus in the past and considered to have evil effects on society, came to be put an end to by the mandate of the Parliament in enacting the Hindu Marriage Act, 1955. The legitimate status of the children which depended very much upon the marriage between their parents being valid or void, thus turned on the act of parents over which the innocent child had no hold or control. But for no fault of it, the innocent baby had to suffer a permanent set back in life and in the eyes of society by being treated as illegitimate. A laudable and noble act of the legislature indeed in enacting Section 16 to put an end to a great social evil. At the same time, Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children are concerned to the properties of the parents only.
5. So far as Section 16 of the Act is concerned, though it was enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provide in Sub-section (3) by engrafting a provision with a non-obstante clause stipulating specifically that nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage, which is null and void or which is annulled by a decree of nullity under Section 12, ‘any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of this not being the legitimate child of his parents’. In the light of such an express mandate of the legislature itself there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in Sub-section (3) of Section 16 of the Act but also would attempt to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself. Consequently, we are unable to countenance the submissions on behalf of the appellants…….”
26. This view has been approved and followed by this Court in Neelamma and others Vs. Sarojamma and others (2006) 9 SCC 612.