Read Judgement: K Santhosha vs Karnataka Power Transmission Corporation Limited
Bengaluru, July 16, 2021: While quashing a Circular which directed that the second wife of a man or her children will not be eligible for compassionate appointment if the marriage had taken place during subsistence of first marriage, the Karnataka High Court has held that there may be illegitimate parents but no illegitimate children.
In this landmark ruling, the High Court has observed that the law should recognize illegitimate children owing to second marriage and confer them equal protection and rights.
The Division Bench of Justice BV Nagarathna and Justice Hanchate Sanjeevkumar emphasized the need to bring about uniformity in law with regard to the legitimacy of children and stated that Parliament should determine in what way protection could be extended to children born outside a valid marriage.
The decision was passed in relation to a prayer made by a son seeking compassionate appointment following the death of his father in harness, who was a lineman with Bangalore Electric Supply Company. It was pleaded that his father married for the second time, during the subsistence of his first marriage, and out of the second marriage the petitioner was born.
The claim for compassionate appointment was rejected by the employer company on the ground that the petitioner was the son of the second wife of the deceased employee. By order dated 15.12.2018, the learned Single Judge had rejected the petitioner’s writ petition. Thereafter, Review Petition was filed, which again was dismissed by the Single Judge. Being aggrieved, the petitioner assailed the aforesaid orders before the Division bench.
As per the government counsel, Regulation 2(1)(b) of the 2011 circular No.KPTCL/B5/721/80-81 issued by the company, categorically defined ‘family’ in relation to a deceased employee to mean only his or her legally wedded spouse and their sons whether married or unmarried and unmarried daughters who were jointly living with him and therefore the petitioner, being a son born out of an invalid marital relationship, is not entitled to be considered for compassionate appointment as per the Regulations of the company.
The Division Bench noted that Regulation 2(1)(b) cannot restrict the expression ‘family’ in relation to a deceased Board employee to mean only his or her legally wedded spouse and their sons and daughters who were jointly living with him, having regard to the broad interpretation given to the expression ‘son’ and ‘daughter’ by the Hon’ble Supreme Court so as to include illegitimate son and daughter for the purpose of consideration for compassionate appointment.
The Bench went on to further add that the validity of a marriage is dependent upon the personal law applicable to the parties but the Special Marriage Act, 1954, is not relatable to any personal law. “Even under the said Act, there are the concepts of void and voidable marriages and hence, it is necessary to protect the rights of children born from such marriage to seek compassionate appointments de hors the personal law applicable to the parents of such a child,” the judgement said.
When there is no provision for conferment of legitimacy, then children born out of void and voidable marriages under other personal laws must also have equal protection under law by treating them at par with children born out of void and voidable marriages under the Hindu Marriage Act or the Special Marriage Act, 1954, insofar as the appointment on compassionate basis is concerned, held the Division Bench.