RIGHTS OF CHILDREN BORN OUT OF SECOND MARRIAGE:
Under Hindu Law:
- Under Hindu Law, where the second marriage is a valid marriage, children born out of this wedlock share equal with the children of the first wife.
- Even if the second marriage is void or voidable under the Hindu Marriage Act, the children of the second marriage are considered as legitimate children, and they have a right to inherit from the property of their father.
- However, under section 16 of the Hindu Marriage Act, such children have a right to inherit the property of their parents alone.
- They can inherit the property of their father, whether self-acquired or ancestral but not the ancestral joint family properties. It implies that they cannot inherit ancestral property other than the share of their father in the ancestral property.
- The law says that the children of the second wife have equal rights as the children of the first wife on their father’s (self-acquired and ancestral) property.
Under Muslim Law:
- Under Muslim law, the father is not bound to maintain his illegitimate child, but Section 125 of the Criminal Procedure Code, 1973, (which ensures that all such unfortunate children are maintained by their fathers except a married daughter) however binds the father to pay for the maintenance of the child. The father would be held liable to pay a certain amount even if the mother refuses to give up the illegitimate child to him.
Under Christian Law:
- Section 21 of The Divorce Act, 1869 says that children born out of Annulled marriage will be treated as legitimate child.
Under Parsi Law:
- Section 3 of The Parsi Marriage and Divorce Act, 1936 lays down three requisites and says that no marriage shall be valid if the marriage falls in that three category. However section 3 (b) of the Parsi Marriage and Divorce Act, 1936 says that even if the marriage is invalid under any of the provision of sub-section (1) of Section 3, the child born of such marriage shall be legitimate.
COMPASSIONATE APPOINTMENT TO CHILDREN IN SECOND MARRIAGE
What is Compassionate Appointment?
Appointments to public offices have to comply with the requirements of Article 14 and Article 16 of the Constitution. Article 16 provides for equality of opportunity in matters of public employment. Compassionate appointment is in the nature of an exception to the ordinary norm of allowing equality of opportunity to every eligible person to compete for public employment.
Compassionate appointment can be claimed only where a scheme or rules provide for such appointment.
What is the object of compassionate employment?
The object and purpose of providing compassionate appointment is to enable the dependent members of the family of a deceased employee to tide over the immediate financial crisis caused by the death of the bread-earner.
“THERE MAY BE ILLEGITIMATE PARENTS, BUT NO ILLEGITIMATE CHILDREN”: KARNATAKA HIGH COURT
Considering the Supreme Court ruling in the case of Union of India vs V R Tripathi of 2019, along with Section 16 of the Hindu Marriage Act, 1955 and provisions of the Special Marriage Act, 1954 which confer legitimacy on children from illegitimate marriages, a division bench of the Karnataka High Court has observed that all children – irrespective of the personal laws governing the marriage of their parents – should be eligible for jobs on compassionate grounds.
A division bench of the High court comprising Justice B V Nagarathna and Justice Hanchate Sanjeev Kumar made the ruling and observations in the course of an appeal filed by a youth seeking a job with the Karnataka Power Transmission Corporation Limited (KPTCL) on compassionate grounds following the death of his father in 2014.
A job on compassionate grounds was denied to K Santosha, 19, a resident of the Ramanagara region of Karnataka, following the death of his father K Kabbalaiah, a KPTCL employee, on the grounds that he was born to the second wife of the employee and on account of the second marriage occurring while a first marriage was in existence.
The Karnataka HC while ordering KPTCL to consider the job application of K Santosha has quashed a KPTCL circular of September 2011 which said that a second wife or her children are not eligible for compassionate appointments “if a marriage has taken place during the subsistence of a first marriage.”
“A child has no role to play in his/her birth. Hence, law should recognize the fact that there may be illegitimate parents, but no illegitimate children. Therefore, it is for the Parliament to bring about uniformity in law vis-à-vis legitimacy of children,” the Karnataka HC bench has observed in its order.
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