Children of void marriage are legitimate; can’t be denied compassionate appointment: SC

Satya Prakash

Tribune News Service

New Delhi, January 11

Holding that children of a void marriage are legitimate offspring, the Supreme Court has ruled that they can’t be denied the benefits of compassionate appointment.

Interpreting Section 16 of the Hindu Marriage Act which confers legitimacy on children of void and voidable marriages, a Bench of Justice DY Chandrachud and Justice MR Shah said denying compassionate appointment to a child born out of a void marriage was “deeply offensive”.

“Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination,” the Bench said.

The December 11, 2018, order came on a petition filed by the Centre, challenging a Bombay High Court decision allowing compassionate appointment of man, who was born from a second marriage. His father, a Central Railways employee in Mumbai had gone for the second marriage during subsistence of his first marriage.

After his father died, he sought a job in the Central Railways on compassionate grounds and it was rejected by the Railways.

The Central Administrative Tribunal set aside the Railways decision. While the Centre’s appeal was pending in the Bombay High Court, the Railway Board issued a circular to the effect that compassionate appointment cannot be granted to children born from a second marriage of a deceased employee.

Rejecting the Railways’ contention, the Bombay High Court ruled that a child born in a second marriage was recognised as a legitimate child and went on to uphold the Tribunal’s decision. It was this order that the Railways challenged in the top court..

Noting that companionate appointment was an entitlement and not a right, the top court said, “Compassionate appointment is intended to alleviate the hardship that the family of a deceased employee may face upon premature death while in service. Compassionate appointment, in other words, is not founded merely on parentage or descent, for public employment must be consistent with equality of opportunity which Article 16 of the Constitution guarantees.”

It said while the law holds marriages contracted during subsistence of a valid marriage as void, children born from the same are treated as legitimate children. The law extends all the rights and protections to such children and the State cannot go against the principles of Article 14 to exclude such children while devising a policy.

“The purpose of compassionate appointment is to prevent destitution and penury in the family of a deceased employee,” the top court said.