[REWORK] Children born from second wife are legitimate for purpose of share in terminal dues of deceased father: Meghalaya High Court

The High Court of Meghalaya has recently observed that children born from a second wife are legitimate for the purpose of a share in the terminal dues of their deceased father.

The observation was given by Justice H. S. Thangkhiew. He said,

“It is now a settled proposition of law, that though a second wife not being a legally wedded wife, the children born out of such union, were legitimate for the purpose of a share in the terminal dues of their deceased father. The judgment of the Hon’ble Supreme Court in the case of (Vidhyadhari & Ors vs. Sukhrana Bai & Ors.) (supra) has on this very point, held that the children of such union, would be entitled to a share of their late father’s employment dues. In the instant case, as it is evident from the birth certificates issued by a competent authority, the fact that 2 children were born out of this union has not been disproved or has been discussed by the learned Lower Court, in accordance with law.”

The appellant who is stated to be the widow of one (L) Looking birth M. Marak, an employee of Irrigation Department, Government of Meghalaya is before this Court by the instant appeal under Rule 3 of the Meghalaya High Court Jurisdiction over District Council Court Order, 2014 read with Rule 6 and Section 384 of the Indian Succession Act, 1985. She was aggrieved by the rejection of her application for revocation of Succession Certificate granted on 09.06.2015.

She has appealed on ground that the Succession Certificate had been obtained by suppression of material of facts, and that the evidence on record indicated that the appellant was entitled to the Succession, as she and the deceased employee had minor children born out of their cohabitation. The further ground taken is that the impugned order was passed in total violation of Garo Customary law.

The Lower court dismissed her petition on ground that that sufficient cause had not been made out to recall the earlier order dated 09.06.2015.

Appellant submitted that the Court below had fallen in error, in dismissing the revocation application, as it failed to consider the fact that the appellant was the second wife of the deceased employee having two issues who are still minors. She submitted that if due consideration had been given to this aspect, notwithstanding the fact that the respondent was the first legally married wife, the appellant and her children were at least entitled to a certain percentage of the terminal benefits of the deceased employee.

Respondent submitted that the respondent was the legally married wife of (L) Looking birth M. Marak, and had 9 children from the wedlock. He submits that the deceased employee and the respondent were not divorced, and apart from this fact, had also nominated the respondent in his Service Book, and though staying separately, was paying maintenance to the respondent. He further submits that according to Meghalaya Civil Service (Pension) Rules, 1983, only a legally wedded wife will come within the definition of ‘Family’. He then submits that the alleged marriage of appellant and (L) looking birth M. Marak, not having been proved or substantiated in any manner, the appeal is without any merit.

“In this context therefore, this Court while re-appreciating the materials, notes that 2 birth certificates had been produced by the appellant in the Revocation proceedings, that of Ms. Tangsil D. Momin and Ms. Rani Dokua D. Momin, born on 01.07.2001 and 14.04.2004 respectively, wherein the father’s recorded name is of (L) Lookingbirth M. Marak. These 2 birth certificates which have been issued by the Registrar Births and Deaths, East Garo Hills, it is observed, did not receive due consideration by the learned Lower Court, while rejecting the revocation application even though they had been in the list of documents before the Learned Lower Court.” Court said.

In view of the above the court balanced the equities in the following terms:

“ 1) The matter shall stand remanded to the learned Lower Court on the limited point of apportionment of a percentage of the terminal benefits to the 2 children born out of the union of the appellant and (L) Lookingbirth Marak.

2) As it has been shown that the DCRG amount of Rs. 7,87,632.00 was the terminal dues of (L) Lookingbirth Marak, as per the documents issued by the Accountant General, Meghalaya and Executive Engineer, East Garo Hills Division, the learned Lower Court shall modify the Succession Certificate No. 25/2015 issued on 09.06.2015 to accord a share of Rupees One Lakh of the said amount to the two children.”