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Judgment
Ajit Kumar Sinha, J.—The present writ petition has been filed for issuance of an appropriate writ, order or direction in the nature of mandamus, commanding upon respondent No. 1 to mention the names of Manish Kumar and Amit Kumar, minor sons of the petitioner, as the nominees in the Provident Fund Account of their father (the petitioner herein) and also to incorporate their names in the list of dependants.
Learned Counsel for respondent No. 1 has referred to a letter dated Sept. 09, 2006 (Annexure A/1 to the counter affidavit) issued to the Regional Provident Fund Commissioner, Ranchi regarding inclusion of the names of Manish Kumar and Amit Kumar as nominees in Form 2. In compliance to the said letter the Employees'' Provident Fund Organization, Ministry of Labour, Government of India, Regional Office, Jharkhand, Ranchi vide its letter dated 11.10.2006 has written a letter to the Secretary, Provident Fund Trust, Board of Trustees, Hindustan Steel Provident Fund, Ranchi, indicating that as per the provisions contained in para 61(3) of the E.P.F. Scheme, 1952 a nomination can be made only in favour of the persons falling within the definition of family. It is also stated that the term "family" has been defined u/s 2(g) of the E.P.F. Scheme, which reads as under:
"Family" means:
(a) Wife in the case of male member of the Employees'' Pension Fund;
(b) Husband in the case of a female member of the Employees'' Pension Fund; and
(c) Sons and daughters of a member of the Employees'' Pension Fund;
Explanation: The expression "sons" and "daughters" shall include children [legally adopted by the member].
He has also submitted and referred that the validity of the marriage was under litigation and Second Appeal No. 7 of 2004 is pending in the Court. In the aforesaid background, the following two propositions have been raised for necessary action, which are set out as under:
1) The nomination is valid only in respect of members falling within the definition of family. Any nomination beyond family is void.
2) As far as pension is concerned, it is admissible to even illegitimate children.
I have gone through the pleadings and heard the rival contentions of the parties. However, it is relevant to quote Section 16(3) of the Hindu Marriage Act, which reads as under:
Legitimacy of children of void and voidable marriages.- (1) Notwithstanding that marriage is null and void u/s 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition-under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage u/s 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 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 u/s 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 possession or acquiring any such rights by reason of his not being the legitimate child of his parents.
At the outset it is submitted that the definition of "family" as referred to in para 61(3) of the E.P.F. Scheme, 1952 cannot prevail over Section 16(3) of the Hindu Marriage Act, as amended by Act 68 of 1976, wherein, Section 16 of the Act engrafts a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable so far as succession or inheritance by such children is concerned, to the properties of the parents only.
The Hon''ble Supreme Court in the case of Jinia Keotin and Others Vs. Kumar Sitaram Manjhi and Others, while considering an identical issue at para 4 and 5 held as under:
We have carefully considered the submissions of the learned Counsel on either side. The Hindu Marriage Act underwent important changes by virtue of the Marriage Laws (Amendment) Act, 1976, which came into force with effect from 27.5.1976. 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 bastardizing 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 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 the 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 setback 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 is concerned, to the properties of the parents only.
So far as Section 16 of the Act is concerned, though it was enacted to legitimize children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provides 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 u/s 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 possession or acquiring any such rights by reason of his 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 that 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. The view taken by the courts below cannot be considered to suffer from any serious infirmity to call for our interference, in this appeal.
Section 16 contains a legal fiction. It is by a rule of fiction ''juris that the legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable. 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.
When an Act of Parliament or a State legislature provides that something shall be deemed to exist or some status shall be deemed to have been acquired, which would not have been so acquired or in existence but for the enactment, the court is bound to ascertain the purpose for which the fiction was created and the parties between whom the fiction was to operate, so that full effect may be given to the intention of the legislature and the purpose may be carried to its logical conclusion.
Considering the aforesaid facts and circumstances of the case, it is clear that even though the litigation between the wives are pending that will have no bearing with regard to the legitimate status of the children vis-a-vis their parents even though illegitimate, inspite of the fact that the marriage could be void or voidable.
In the aforesaid background, the respondents are directed to allow the children of the petitioner to be mentioned as nominees in the petitioner''s Employees'' Provident Fund Account and'' it is further directed to incorporate their names in the list of dependants for the purposes of succession and/or inheritance by such illegitimate children to the properties and/or retiral benefits of their parent. This writ petition is, accordingly, allowed but without any order as to costs.