Case Note & Summary
The case involves a second appeal before the High Court of Bombay at Goa arising from a suit filed by the respondent/original plaintiff (Smt. Aidem Naique) seeking a declaration that the marriage of appellant No.1 (Smt. Shalini Ballikar) with the late Raiu Shannu Naique, solemnized on 11th June 1981, was null and void. The plaintiff also sought a consequential direction to cancel the marriage registration and a declaration that the legitimisation of the illegitimate children (appellants No.2 to 4) from this marriage was null and void. The appellants, who were the original defendants, contested the suit. The trial court (Civil Judge, Junior Division, Margao) dismissed the suit, including the counter claim filed by appellant No.1. The respondent/plaintiff appealed to the Additional District Judge, Margao, who allowed the appeal and set aside the trial court's judgment and order. Against this, the appellants preferred the second appeal. The High Court admitted the appeal on 21st September 2000 and framed a substantial question of law regarding whether the legitimisation of appellants No.2 to 4 could be invalidated in light of Article 31 of the Law of Marriage No.1, which provides that children of a void or voidable marriage shall always be legitimate, even if the marriage was not contracted bona fide. The appellants' counsel argued that while not challenging the decree regarding the nullity of marriage (prayer clause (a)), the decree regarding the legitimisation of children (prayer clause (b)) should be set aside under Article 31. The respondent's counsel opposed this. The High Court, after considering the submissions and the evidence, held that Article 31 clearly states that children of a void or voidable marriage are always legitimate, and therefore the decree in terms of prayer clause (b) is liable to be set aside. The court allowed the second appeal in part, setting aside the decree regarding the legitimisation of children, and upheld the decree regarding the nullity of marriage.
Headnote
A) Family Law - Legitimacy of Children - Article 31 of Law of Marriage No.1 - Children of void or voidable marriage are always legitimate, even if marriage not contracted bona fide - The respondent/plaintiff sought declaration that marriage of appellant No.1 with late husband was null and void and that legitimisation of children from such marriage be declared null and void - The trial court dismissed the suit, but the appellate court allowed the appeal and set aside the trial court's order - The High Court held that under Article 31, children of a void or voidable marriage shall always be legitimate, and therefore the decree in terms of prayer clause (b) (regarding legitimisation of children) is liable to be set aside - Held that the legitimisation of appellants No.2 to 4 cannot be invalidated (Paras 1-5).
Issue of Consideration
Whether the legitimisation of appellants No.2 to 4 could be invalidated when Article 31 of the Law of Marriage No.1 states that even illegitimate children of void or voidable marriage get status of legitimate children, even though such a marriage was not contracted bona fide by one or both the spouses.
Final Decision
The High Court allowed the second appeal in part. The decree in terms of prayer clause (b) of the plaint (regarding legitimisation of children) was set aside. The decree in terms of prayer clause (a) (declaration that marriage is null and void) was upheld.
Law Points
- Legitimacy of children of void marriage
- Article 31 of Law of Marriage No.1
- Portuguese Family Laws in Goa
- Substantial question of law
