SECOND INTERNAL MOOT COURT

BALAJI LAW COLLEGE, PUNE

BEFORE THE HON’BLE HIGH COURT OF BOMBAY

IN THE MATTER OF:

MS. PRIYA………………………………………………………………...APPELLANT

versus.

DEPARTMENT OF PENSION AND PENSIONER’S WELFARE,

MINISTRY OF FINANCE, GOVERNMENT OF INDIA………………. RESPONDENT 1
RISHI…………………………………………………………………...…. RESPONDENT 2
AMRITA…………………………………………………………………...RESPONDENT 3

MEMORIAL ON BEHALF OF THE RESPONDENT

COUNSEL FOR THE RESPONDENT

DIKSHA MUNDHRA
 SECOND INTERNAL MOOT COURT, BALAJI LAW COLLEGE

TABLE OF CONTENTS

CONTENTS PAGE NO.

LIST OF ABBREVIATIONS 3
INDEX OF AUTHORITIES 4
STATEMENT OF JURISDICTION 6
STATEMENT OF FACTS 8
STATEMENT OF ISSUES 10
SUMMARY OF ARGUMENTS 11
ARGUMENTS ADVANCED 13
PRAYER 27

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LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSIONS
& And
Sec Section
AIR All India Reporter
Anr. Another
Hon’ble Honourable
i.e. That is
Ors. Others
SC Supreme Court
SCC Supreme Court Cases
UOI Union of India
V. Versus

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INDEX OF AUTHORITIES

TABLE OF CASES

S.No. CASES Page No.

1. Alok Kumar v State of NCT of Delhi 2015 SCC Online Del 9470 16
2. D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469 14
Draupada @ Draupadi Jaydeo Pawar v. Kashinath Shivram Chavan, 2017 (1)
3. 18
ALL MR 197
4. Gokal Chand v. Pravin Kumari AIR 1952 SC 231 15
5. Indra Sarma v. V.K.V Sarma (2013) 15 SCC 755 15
6. Jinia Keotin v. Kumar Sitaram Manjhi, (2003) 1 SCC 730 26
7. Kamalbai Venkatrao Nipanikar v. State of Maharastra, w.p no. 9933/2016 18
8. Kirpal Kaur v. Jitender Pal Singh, (2015) 9 SCC 356 22
Krishna kumara thampuran v. Palace Administration Board, (2007) 1 HLR
9. 26
593(Ker)
Maruti Rau Mane since deceased through LRs. Housabai Maruti Mane v.
10. 26
Shrikant MarutiMane and others, (2007) 109 (1) Bom LR 538
11. Munni Devi & Ors v. Union of India, (1995 (2) ATJ 272) 20
12. Neelamma and Ors. v. Sarojamma and Ors, (2006) 9 SCC 612 26
13. Nitu v. Sheela Rani and Others (2016) 16 SCC 229 23
14. Pawan Kumar Shukla v. Union of India, O.A No. 2987/2004 20
15. Rameshwari Devi v. State of Bihar and Ors, (2000) 2 SCC 431 18
16. Satya Charan Dutta v. Urmilla Sundari Dassi and others, 1970 SCR (2) 294 22
Smt Kamal Mahaling Patil Vs. Smt. Indubai Mahaling Patil & Ors. 2019
17. 17
(BombayHC) Online2385
18. Smt. Chanda Hinglas Bharati V/s. The State of Maharashtra, (2016) 2 B.C.R 18
19. Smt. Violet Issaac and Others v. Union of India and Ors., (1991) 1 SCC 20
20. Sumitra Bai V. Public at Large, 2014 SCC Online Raj 571 26
21. Taylor v. Francis (1986) 224 Cal Rptr 186 (California) 14

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S. No. INDIAN BOOKS

1. Dr. Paras Diwan’s Family Law
2. Sumeet Malik, B.P. Leri’s Law of Marriage and Divorce, 538 (3rd edition)

S. No. LEGISLATIONS REFERRED

1. Indian Penal Code, 1860
2. Civil Procedure Code, 1908
3. Hindu Marriage Act, 1955
4. The Hindu Succession Act ,1956
5. CSS Pension (Rules) 1972

6. Maharashtra Civil Service (Conduct) Rules, 1979

7. Maharashtra Civil Services (General Conditions of Services) Rules, 1981

8. Maharashtra Civil Services (Pension) Rules, 1982
9. Family Courts Act,1984

10. The Protection of Women from Domestic Violence Act, 2005

S. No. LEGAL DATABASE

1. www.scconline.com (SCC ONLINE)
2. http://www.manupatrafast.com (MANUPATRA)

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STATEMENT OF JURISDICTION

The Hon’ble High Court of Bombay has the jurisdiction in the instant matter as per section 19
of the Family Courts Act of 1984 read with section 96 of the Civil Procedure Code, 1908.

• Section 19 of the Family Courts Act, 19841, read as follows:

19. Appeal — (1) Save as provided in sub-section (2) and notwithstanding anything contained
in the Code of Civil Procedure,1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2
of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an
interlocutory order, of a Family Court to the High Court both on facts and on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of
theparties2 [or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973
(2 of 1974):
Provided that nothing in this sub-section shall apply to any appeal pending before a High Court
or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)
before the commencement of the Family Courts (Amendment) Act, 1991 (59 of 1991).]
(3) Every appeal under this section shall be preferred within a period of thirty days from the
date of the judgment or order of a Family Court.
[(4) The High Court may, of its own motion or otherwise, call for and examine the record of
any proceeding in which the Family Court situate within its jurisdiction passed an order under
Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying
itself as to the correctness, legality or propriety of the order, not being an interlocutory order,
and as to the regularity of such proceeding.]
[(5)] Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order
or decree of a Family Court.
[(6)] An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or
more Judges.

1
Section 19, The Family Courts Act, 1984
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• Section 96 of the Civil Procedure Code, 19082, read as follows:

96. Appeal from original decree — (1) Save where otherwise expressly provided in the body of this
Code or by any other law for the time being in force, an appeal shall lie from every decree passed by
any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions
of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the
original suit does not exceed [ten thousand rupees.]]

2
Section 96, The Civil Procedure Code, 1908
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SUMMARY OF FACTS

Marital Relationship of Dr Kumar and Sakshi

1. Dr. Kumar, a resident of Janakpuri did his MBBS from AIIMS, Delhi in the year 1985. In
the year 1990. He started his service in Lok Nayak hospital in Delhi under the Central
Government health services. He was originally posted in Delhi. While he was in the
service; he married Sakshi, daughter of Mr. D. Jain, a resident of Delhi in the year 1991.
The same year he inherited 4 acres of land from his great grandfather who expired the same
year at an age of 105.
2. In the year 1993, they had their first baby boy (Rishi). Out of extreme happiness and as the
life was unfolding to them with beautiful surprises, Mr. Kumar bought a 3 bhk flat in sector
78 of Noida. Since Dr. Kumar was in the Central Govt. service, he was under All India
Transfer Liability and hence, in the year 1995, he was transferred to Mumbai.
3. He could not bring his wife, Sakshi and his son with him, due to well-built residence after
his marriage. Here in Mumbai, he took a government quarter marked as F-2(W0)-313. In
the year 1997, he became father for the second time, this time to a baby Girl (Amrita).

Priya’s Treatment by Dr Kumar

4. In 1996, at one important seminar which was attended by Dr. Kumar on female health
hazards and awareness, he was interviewed by Priya, a localite, a freelancer covering
important events as a student of Journalism. The same year Mr. Kumar after successfully
completing his super specialty he served as a senior doctor in Chowpatty Maternity
Government Hospital, Gurgaon, Mumbai, and also bought himself a residence near-by.
5. Priya, was diagnosed with Jaundice. She approached him for medical advice and looking at
her condition he advised her to be under his supervision, which she agreed upon. Sakshi
knew that, Mr. Kumar had his own way of treating his patients and hence did not object his
guidance to Priya.
6. Though she recovered fully, but she had no permanent or regular means of livelihood. Priya
continued to stay there with him with the consent of Dr. Kumar. she was put in such a
position that she could not leave the association of Dr. Kumar, because they became so
attached and close to each other during her stay there, that they started living like husband
and wife, and also had a baby girl (Pooja) in the year 1999.
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Criminal Complaint by Sakshi

7. Sakshi, Dr. Kumar’s wife came to know about their relation in 2002. Sakshi lodged a
complaint in Police Station in Mumbai u/s 494 of IPC, and 17 of Hindu Marriage Act 1955,
during her last visit to Dr. Kumar’s Residence.
8. Sakshi while returning to Delhi towards her own residence from airport by a hired taxi, she
met with an accident in which she was killed. Dr. Kumar immediately rushed to Delhi after
he was informed about the accident and attended her last funeral rites.

Events After Sakshi’s Death

9. After putting his son (Rishi) and daughter (Amrita) in Boarding School in Mumbai, and
thereafter he was transferred to Chennai. Along with Priya, and Pooja he shifted to this new
place and started a normal life again there. There was no further action taken by the police
and the proceeding was abated.
10. In 2013, Mr. Kumar died suddenly out of cardiac arrest during his visit to Mumbai. After
his death when Priya approached the pension authority, her claim was refused saying that
she was not entitled to family pension benefits.
11. Then she filed a civil suit, in Mumbai claiming her rights over Mr. Kumar’s property and
pension benefits which nullified her claim on the ground that she was not legally married to
Dr. Kumar, and Rishi and Amrita are the legal heirs and hence are entitled to the property
rights and pension benefits.
12. The case is listed before the Hon’ble Bombay High Court.

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STATEMENT OF ISSUES

THE RESPONDENT VERY RESPECTFULLY PUTFORTH BEFORE

THE HON’BLE SUPREME COURT THE FOLLOWING QUERIES:

[ISSUE 1]

WHETHER THE RELATIONSHIP BETWEEN DR. KUMAR AND PRIYA FALLS

UNDER THE AMBIT OF RELATIONSHIP IN NATURE OF MARRIAGE?

[ISSUE 2]

WHETHER FAMILY PENSION BENEFITS CLAIMED BY MS. PRIYA

STANDS INCONTRAVENTION TO LAW?

[ISSUE 3]

WHETHER MS. PRIYA HAS AN INHERENT RIGHT OVER DR KUMAR’S

ESTATE?

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SUMMARY OF ARGUMENTS

I. WHETHER THE RELATIONSHIP BETWEEN DR. KUMAR AND MS.

PRIYAFALLS UNDER THE AMBIT OF RELATIONSHIP IN NATURE OF
MARRIAGE?

The counsel for the respondents most humbly submits that as the relationship
between Dr. Kumar and Ms. Priya does not fulfil the requirements of both the
common law marriage and guidelines for considering a concubinage relationship
under the ambit of Section 2(f) of The Protection of Women from Domestic
Violence Act, 2005, therefore, it should not be considered to be a relationship in the
nature of marriage.

II. WHETHER FAMILY PENSION BENEFITS CLAIMED BY PRIYA STANDS

IN CONTRAVENTION TO LAW?
The counsel for the respondents most humbly submits that Ms. Priya cannot be
considered to be given the status of a legally wedded wife, which also shows that she
cannot be termed as a widow in a true and a legal sense. Priya thus has no status and
cannot claim any share from pensionary benefits. As per the rules of the Act, the family
pension shall be payable to the children of Sakshi, who was the legally wedded wife of
Dr. Kumar and upon her death shall grant the rights to Rishi and then later to Amrita until
she gets married. As the factum of marriage stands disputed between Priya and Dr.
Kumar, the share of Pooja in family pension is disputed and stands nullified.

III. WHETHER MS. PRIYA HAS AN INHERENT RIGHT OVER DR. KUMAR’S
ESTATE?
The counsel for respondents most humbly submits that Ms. Priya does not have an
inherent right over Dr Kumar’s estate since she is not a legally wedded wife of Dr Kumar
and cannot be included in the definition of ‘widow’ under class I of legal heirs as per
section 8 and section 10 of the Hindu Succession Act of 1956. Ms. Pooja, being an
illegitimate child of Dr Kumar and Ms Priya, will be entitled to claim property that was
self-acquired by Dr Kumar but will have no claim in the ancestral land of four acres that

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was inherited by Dr Kumar since, an illegitimate child has no right over ancestral or
coparcenary property but can exercise their right of inheritance with respect to
self-acquired property of their parent.

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ARGUMENTS ADVANCED

I. WHETHER THE RELATIONSHIP BETWEEN DR. KUMAR AND PRIYA

FALLS UNDER THE AMBIT OF RELATIONSHIP IN NATURE OF
MARRIAGE?

1. The counsel for the respondents humbly submits that the relationship between
Dr. Kumar and Priya does not fall under the meaning of “domestic
relationship” and it should be presumed that the relationship between them
was not in the nature of a marriage. This will be proved in a two-fold manner,
Firstly, The Concubinage Between Dr. Kumar and Ms. Priya does not come
under the Essentials of a Common Law Marriage, Secondly, The Live- in
relationship does not fulfill the requisites of relationship being in ‘Nature of
Marriage’.

[1.1] THE CONCUBINAGE BETWEEN DR. KUMAR AND PRIYA DOES NOT
COMESUNDER THE ESSENTIALS OF A COMMON LAW MARRIAGE

2. Priya was diagnosed with jaundice in the year 1997 and having a close
friendship with Dr. Kumar she approached him for treatment. Dr. Kumar took
her under his care and supervision. This was a mutual agreement between both
of them so as to provide the best treatment to Priya. Though she recovered
fully, but she had no permanent or regular means of livelihood till that time;
neither she was engaged anywhere as she was struggling as a freelancer and
was very difficult to establish in the city like Mumbai. Therefore, she
continued to live with Dr. Kumar.

3. As when Dr. Kumar started living with Priya even after her ailment was cured,
he had another spouse living, Saakshi. Therefore, the relationship between the
two cannot be considered as a marriage. It can be found that the appellant was
ignorant of the fact thatDr. Kumar was a married man having two children and

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a spouse living therefore, the relationship between them can be termed as

adulterous.

4. As living together without getting married was a socially unaccepted culture in

the country there were no cases regarding such a situation. But as the time
went by such a situation arose and foreign decisions were to be referred to
come to a logical solution and conclusion. Therefore, “Taylor v. Francis”3 was
referred and the following grounds were stated as the prerequisites for proving
a live-in relationship: The couple must holdthemselves akin to spouses in front
of the society, they must be of marriageable age, they must have voluntarily
cohabited and put up to the world their relationship akin to that of spouses. This
decision was formed as the base in the case of D. Velusamy v. D.
Patchaiammal 4
the court pointed out that the expression “domestic
relationship” includes not only the relationship of marriage but also a
relationship ‘in nature of marriage.’ There is no definition of the expression ‘in
nature of the marriage’ in the act and therefore the court needs to provide a
necessary interpretation. In the opinion of the court ‘relationship in the nature
of marriage’ is akin to a common law marriage. The term ‘nature of marriage’
fulfills the requirements of a common law marriage. Common Law marriage
require that although not being formally married: (a) The couple must hold
themselves out to society as being akin to spouses, (b) They must be of legal
age to marry, (c) They must be otherwise qualified to enter into a legal
marriage, including being unmarried, (d) They must have voluntarily
cohabitated and held themselves out to the world as being akin to spouses for a
significant period of time.

5. There is no evidence provided by the appellant to show the two held out in the
societyas spouses. Although both of them were of legal age to marry they were
not otherwise qualified to do the same due to the fact that Dr. Kumar had a
spouse living when the relationship started. Priya lived with Dr. Kumar even
after she got well as there was no source of income for her and finding work as
a freelancer was difficult. There is no substantial evidence provided to bring

3
Taylor v. Francis (1986) 224 Cal Rptr 186 (California)
4
D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469
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out about the beginning of their relationship to analyze the time period of
voluntary cohabitation.

6. Further in the case of Gokal Chand v. Pravin Kumari5 the court held that a
presumption of marriage can be drawn from long cohabitation but such a
presumption is rebuttable and polygamy, meaning having more than one wife
at the same time is considered as adulterous relationship which cannot be said
to be a relationship in the nature of marriage.

[1.2] THE LIVE IN RELATIONSHIP DOES NOT FULFILL THE REQUISITES OF

RELATIONSHIP BEING IN ‘NATURE OF MARRIAGE’

7. It is humbly contended that the live-in relationship between Dr. Kumar and
Priya does not fulfil the requisites of a relationship being in nature of marriage.
In the case of Indra Sarma v. V.K.V Sarma6 the court laid down guidelines for
testing under what circumstances, a live-in relationship will fall within the
expression ‘relationship’, wherein (a) shared household which means a
household where the person aggrieved lives or at any stage has lived in a
domestic relationship, (b) Sexual Relationship not just for pleasure, but for
emotional and intimate relation, for procurement of children, so as to give
emotional support, companionship and also material affection, caring etc.(c)
Children- Having children is a strong indication of a relationship in the nature
of marriage. The parties therefore, intend to have a long-standing relationship.
(d) Intention and conduct of the parties- Common intention of the parties as to
what their relationship is to be and to involve, and as to their respective role
and responsibilities, primarily determines the nature of that relationship. (e)
Pooing of resources- Supporting each other, or any one of them, financially,
sharing bank account, acquiring immovableproperties in joint name or in name
or the woman, long-term investment in business may be a guiding factor. (f)
Socialization in Pubic- Holding out to public and socializing with friends,
relatives and others, as if they are husband and wife is a strong circumstance to

5
Gokal Chand v. Pravin Kumari AIR 1952 SC 231
6
Indra Sarma v. V.K.V Sarma (2013) 15 SCC 755
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hold the relationship is in the nature of marriage. Dr. Kumar and Priya stayed
together for a considerable period of time but such arrangement to stay was out
of the need for treatment but due to financial instability of Priya she continued
to stay with him. Therefore, there was no shared household between them.
Having sexual relationship and bearing child was adulterous from the side of
Dr. Kumar and cannot be termed as a valid reasoning for his intention to create
a domestic relationship.

8. Further, no evidence to support pooling of resources of socialization in public

has been provided to bring in the relationship between them in the nature of
marriage. Further, in the case of Alok Kumar v State of NCT of Delhi7 the court
stated that “Live in relationship is a walk-in and walk-out relationship. There
are no strings attached to this relationship, neither this relationship creates any
legal bond between the parties. It is a contract of living together which is
renewed everyday by the parties without consent of the other party and one
party can walk out at will at any time.” It can be seen that Dr. Kumar and Priya
stayed together in a live-in relationship which is a walk in-walk out
relationship and they could have walked out without having any marital
implication. Such a relationship should not be considered head of relation in
nature of marriage.

9. It is contended by the respondent that Dr. Kumar and Priya were in an

adulterous relationship and even after the death of Saakshi Dr. Kumar and
Priya stayed together for Ten years but never got formally married. It shows
that they were not in a committed mind to legally bind them into the knot of
marriage. Thus, they were in a walk-in and walk-out relationship which should
not be treated as a relationship in the nature of marriage. Their relationship
also does not fulfill the conditions laid down in the cases mentioned to be
termed so.

7
Alok Kumar v State of NCT of Delhi 2015 SCC Online Del 9470
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II. WHETHER FAMILY PENSION BENEFITS CLAIMED BY PRIYA STANDS IN

CONTRAVENTION TO LAW?

10. The counsel for the respondent most humbly submits that the family pension
benefits claimed by Ms. Priya was contrary to law and thus, the claim does not
stand to be valid and shall be set aside. This will be proved in a two-fold
manner, Firstly, Priya cannot be described as a widow of Dr. Kumar, her claim
for pensionary benefit stands nullified, Secondly, Entitlement to claim for
Pensionary benefits by child from an illegitimate relationship stands disputed.

[2.1] MS. PRIYA CANNOT BE DESCRIBED AS A WIDOW OF DR. KUMAR,

HERCLAIM FOR PENSIONARY BENEFITS STANDS NULLIFIED

11. It cannot be disputed that Priya cannot be presumed to be a wife as the

relationship between Priya and the deceased official is not valid as per the
Service Rules and FamilyLaw for the reasons that the first wife was alive at the
time of cohabitation. In the case of Indra Sarma v. V.K.V Sarma8, the Supreme
Court of India held that when it is brought to the knowledge of the women that
the man with whom she is in a live-in relationshipand who already has a legally
wedded wife and two children is not entitled to any reliefs available to a legally
wedded wife and also to those who enter into a relationship in the nature of
marriage, as per provisions of PWDVA 20059.

12. In order to understand the share of the family pension, reliance is placed upon
the definition of family under Rule 9(16) of the Maharashtra Civil Services
(General Conditions of Services) Rules, 198110 which is read as Government
Servant’s wife or husband as the case may be, residing with the Government
servant and legitimate children and step-children residing with and wholly
dependent upon the Government servant11. The note attached states that not

8
Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755 (India)
9
The Protection of Women from Domestic Violence Act, 2005, (India)
10
Rule 9 (16) of Maharashtra Civil Services (General Conditions of Services) Rules, 1981
11
Smt Kamal Mahaling Patil Vs. Smt. Indubai Mahaling Patil & Ors. 2019 (BombayHC) Online 2385
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more than one wife is included in the term “family” for the purpose of these
rules. The definition was subject to an amendment on18.01.2016, by which the
word “wife” was replaced by the word “legally wedded wife” wherein the
intention of Legislature was interpreted that only a legally wedded wife would
get pension. This view was also taken in the case of Kamalbai Venkatrao
Nipanikar v. State of Maharashtra 12 , wherein a second wife will not be
entitled to family pension unless she is a legally wedded wife.

13. As discussed above, Rule 116 of the Maharashtra Civil Pension Rules, 1982
recognizes only the widow of such a deceased government servant to be
entitled for a pension, andsub rule (6) of the provision states upon the division
of the amount of pension if there are more than one widow. If this is to be
construed that the provisions are only applicable to a legally wedded wife
however which is not relevant in the present case since, they were in an
adulterous and bigamous relationship. Even though she claims to be entitled to
the benefits under the presumption of wife, but she does not meet the necessary
criteria of the legally wedded wife to confer her with the pensionary benefitsas
she does not stand to be a widow of the deceased 13. In Rameshwari Devi v.
State of Bihar14, the court submits that even if there is a presumption in favor
of marriage, still it does not make the second marriage legal. Even if the
children are entitled to the pension, the wife is entitled to nothing.

14. As per sub rule 7(c) of Rule 54, of CSS Pension (Rules) 197215 wherein it is
described that if deceased employee is survived by one widow and children
from first, however second marriage was solemnized after first wife was not
alive, Family Pension will be shared equally by widow being legally wedded
wife along with child from first wedlock i.e., 50% each. In the case of Smt.
Chanda Hinglas Bharati v/s. The State of Maharashtra16, it was heled that the
weightage has to be given to the word “widows” as expressed under Rule

12
Kamalbai Venkatrao Nipanikar v. State of Maharastra, w.p no. 9933/2016
13
Draupada @ Draupadi Jaydeo Pawar v. Kashinath Shivram Chavan, 2017 (1) ALL MR 197
14
Rameshwari Devi v. State of Bihar and Ors, (2000) 2 SCC 431
15
7(c) of Rule 54, of CSS Pension (Rules) 1972
16
Smt. Chanda Hinglas Bharati V/s. The State of Maharashtra, (2016) 2 B.C.R. page 623
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116(6)(a)(i) of the Maharashtra Civil Services (Pension) Rules, 198217. As per

the Oxford English Dictionary, widow would be a woman who has lost her
husband by death and who has not remarried again. As the relationship
between thesaid Government servant and the Priya would not be a marriage in
the eyes of law, hence she cannot be termed as a widow.

15. The conditional requirement for admissibility of Family Pension claim if

Government servant has survived by widows and children from each wedlock
is not satisfied in the case of Dr Kumar and Ms. Priya as (i) there was no
solemnization in nature of marriage that existed, and (ii) Even after his first
wife was alive, they cohabited and Priya had given birth to a girl, while being
in an adulterous relationship with Dr Kumar. Adding to that as per CCS
conduct Rules 21 and Rule 26 (1) and (2) of the Maharashtra Civil Services
(Conduct) Rules, 197918, No Government servant having a spouse living shall
enter into, or contract, or a marriage with any person. In Chanda’s case 19, it
was also held that the contract of marriage with second lady in subsistence of
first marriage or when spouse is living, then second lady cannot claim as
widow entitled to pension subject to the rules stated above. This draws the
similarity to the facts where Priya despite having knowledge of the first
marriage of Dr. Kumar entered into a relationship with him and also gave birth
to a girl in this period of contract which is infringing the legal provisions in the
system.

16. As Ms. Priya cannot be considered to be given the status of a legally wedded
wife, which also shows that she cannot be termed as a widow in a true and a
legal sense. Priya thus had no status and could not claim any share from
pensionary benefits.

[2.2] ENTITLEMENT TO CLAIM FOR PENSIONARY BENEFITS BY THE

CHILDFROM AN ILLEGITIMATE RELATIONSHIP STANDS DISPUTED

17
Rule 116(6)(a)(i) of the Maharashtra Civil Services (Pension) Rules, 1982
18
Rule 26 (1) and (2) of the Maharashtra Civil Service (Conduct) Rules, 1979
19
Ibid
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17. The nature of the relationship between Dr Kumar and Ms. Priya cannot be
presumed to be in the nature of marriage as it commenced while the first wife
was alive. In the year 1999, Priya had given birth to Pooja and Sakshi had filed
a case in 2002 with respect to Section 494 of The Indian Penal Code, 186020,
and 17 of Hindu Marriage Act 195521. Hence, the marriage between the couple
is not proved and remains disputed. Like in the case of Pawan Kumar Shukla v.
Union of India22, it was held that the daughter can onlyget the family pension if
the factum of marriage is clear and not disputed.

18. It is correct that pensionary benefits would have to be granted to even to

illegitimate child but this illegitimate child is to be seen with reference to the
Section 11 of Hindu Marriage act wherein marriage has been valid if not void
whereas in the instant case factum of marriage itself is disputed, therefore
applicant cannot have a better right than his mother, whose claim has not been
accepted by the authority. In case of Munni Devi & Ors v. Union of India23, it
was held that as the marriage itself is not proved, her alleged child cannot
claim family pension on the basis of being the daughter from the deceased
employee.

19. The Hon’ble Supreme Court in the case of Smt. Violet Issaac and Others v.
Union of India and Ors.24, held that the Family Pension scheme under the rule
is designed to provide relief to the widow and children by way of
compensation for the ultimate death of the deceased employee. The Rules
designate the persons who are entitled to receive the family pension. Thus, no
other person except those designated under the Rules are entitled to receive the
family pension.

20. As per Sub rule 7 (a) of Rule 54 of CSS (Pension Rules) 25 and Rule 116 (6) (ii)
of Maharashtra Civil services (Pension) Rules, 198226 on death of a widow,
her share of family pension shall become payable to her eligible child provided
20
Section 494 of the Indian Penal Code, 1860, “Marrying again during lifetime of husband and wife”
21
Section 17 of the Hindu Marriage Act, 1955, “Punishment of bigamy.”
22
Pawan Kumar Shukla v. Union of India, O.A No. 2987/2004
23
Munni Devi & Ors v. Union of India, (1995 (2) ATJ 272)
24
Smt. Violet Issaac and Others v. Union of India and Ors., (1991) 1 SCC pg.725
25
Sub rule 7 (a) of Rule 54 of CSS (Pension Rules) 1972
26
Rule 116 (6) (ii) of Maharashtra Civil services (Pension) Rules, 1982
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that if there was only one such widow, the share will be payable in full to her
children. As Sakshi was the legally wedded wife of Dr. Kumar, after her death
her share shall be paid to her children, wherein as per sub rule 8(iii) of Rule
5427, family pension is payable on orderof their birth, and the younger will not
be payable unless the elder becomes ineligible, that is until he attains the age of
twenty-five years or is married or starts earning on his individual capacity.
Hence, the pension will be payable to Rishi, and he stands as the legal claimant
for the pensionary benefits.

21. As per the rules of the Act, the family pension shall be payable to Rishi and
then later to Amrita until she gets married. As the factum of marriage stands
disputed between Priya and Dr. Kumar, the share of Pooja in family pension is
disputed and stands nullified.

27
Rule 54 sub rule 8 (iii) of the CSS (Pension Rules) 1972
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III. WHETHER MS. PRIYA HAS AN INHERENT RIGHT OVER DR. KUMAR’S
ESTATE?

22. The counsel for the respondents most humbly submits that Ms. Priya does not
have a right to claim a share of the self-acquired property of Dr Kumar, as well
as the ancestral property that was inherited by Dr Kumar. Ms. Pooja, the
illegitimate child of Dr Kumarand Ms. Priya has a right to claim share over the
self-acquired property. This will be proved in a two-fold manner, Firstly, Ms.
Priya does not qualify as a legal heir of classI for the purpose inheritance as per
section 8 of Hindu Succession Act 1956, Secondly, Ms. Pooja has a right over
Dr Kumar’s self-acquired property.

[3.1] MS PRIYA DOES NOT QUALIFY AS A LEGAL HEIR SPECIFIED IN

CLASS I AS PER SECTION 8 OF HINDU SUCCESSION ACT, 1956

23. The counsel for the respondents most humbly submits that in circumstances
where the self-acquired property of a Hindu male is to be divided among the
legal heirs, section 8 of the Hindu Succession Act is applicable. In the case of
Satya Charan Dutta v. Urmilla Sundari Dassi and others28, section 8 of the
Hindu succession act was applied in the event of the death of the husband. In
the case of Kirpal Kaur v. Jitender Pal Singh29, the Hon’ble Supreme Court
enforced the applicability of section 8 of Hindu Succession Act while deciding
upon a partition suit.

24. When a Hindu male die, intestate, that is, without executing a will in the nature
of devolution of his assets and properties, the general rule as per section 8 is
applied and the property is first divided among class I heirs of the deceased.
The section reads as follows: “The property of a male Hindu dying intestate
shall devolve according to the provisions of this Chapter: (a) firstly, upon the
heirs, being the relatives specified in class I of the Schedule; (b) secondly, if

28
Satya Charan Dutta v. Urmilla Sundari Dassi and others, 1970 SCR (2) 294
29
Kirpal Kaur v. Jitender Pal Singh, (2015) 9 SCC 356
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there is no heir of class I, then upon the heirs, being the relatives specified in
class II of the Schedule; (c) thirdly, if there is no heir ofany of the two classes,
then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then
upon the cognates of the deceased.”

25. In the case of Nitu v. Sheela Rani and Others30, the hon’ble Supreme Court
held that the properties of a Hindu who died intestate would first go to the
persons enumerated in class I of the schedule as per the provisions of section 8
of the Hindu Succession Act of 1956, which includes the wife of the deceased.
Class I heirs of a deceased includes the widow, by whom one share of the total
property should be acquired upon the deathof a Hindu male.31

26. Further, in the case of Rameshwari Devi v. the State of Bihar32, the Apex court
held that the property of a male Hindu dying intestate would firstly devolve on
heirs of first class which includes the widow. In the same case, the court also
held that the second marriage contracted during the subsistence of first
marriage was void and the second wife will not be included in the definition of
‘widow’33. Section 8 and section 10 of the Hindu Succession Act of 1956 will
be applicable for dividing the property in an equitable manner, but, in the
above case, the marriage between the second wife and the deceased is in the
nature of a void marriage, she cannot be included in the meaning of the term
‘widow’34.

27. Ms. Priya does not hold the title of wife of the deceased Dr Kumar; she cannot
be termedas a ‘widow’ for the purpose of claiming share in the property owned
by Dr Kumar. In the event, if she had married Dr Kumar after the death of his
first wife, that is, Mrs. Sakshi, then Ms. Priya would have been included in the
definition of the term ‘widow’for the purpose of claiming her share of property
that is owned by Dr Kumar. The arrangement between Ms. Priya and Dr
Kumar was adulterous in nature since they cohabitated while the first wife of
Dr Kumar was still alive and even had a child in the year 1999. The

30
Nitu v. Sheela Rani and Others (2016) 16 SCC 229
31
Section 10, The Hindu Succession Act (1956)
32
Rameshwari Devi v. the State of Bihar (2000) 2 SCC 421
33
Ibid
34
Supra Rameshwari Devi v. the State of Bihar (2000) 2 SCC 421
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arrangement between the two can be termed as a live- in relationship but such
relationships do not qualify the parties to the arrangement as a married couple.
Furthermore, partners to a live -in relationship do not enjoy an automatic right
over the inheritance of property of their partner35.

28. The event that would enable Ms. Priya’s claims over the property owned by
the deceased Dr Kumar would have been considered to be genuine is when Dr
Kumar have had executed a will for the division of the property owned by him,
making Ms. Priya one of the beneficiaries of the same. But such is not the
case in the instant matter. Therefore, though Ms. Priya and Dr Kumar
continued to be in an arrangement of a live- in relationship, but Ms. Priya
cannot be included with the legal heirs who have an inherent right over the
property of Dr Kumar’s. Therefore, Ms. Priya will not be entitled to any claim
towards the self -acquired property as well as the ancestral property that was
inherited by Dr Kumar.

[3.2] MS POOJA HAS A RIGHT OVER DR KUMAR’S SELF ACQUIRED

PROPERTY

29. The counsel for the respondents most humbly submits that Ms. Pooja is the
child born out of wedlock of Dr Kumar and Ms. Priya. Ms. Pooja was born in
the year 1999, when Dr Kumar his first wife, Mrs. Sakshi was in a marital
bond. Therefore, Pooja is the illegitimate child of Dr Kumar. The Hindu
Marriage Act, 1955 grants a legitimate status to every child who is born out of
marriages that are void, voidable or legal in nature, but there isn’t any
independent legislation that favors the legitimacy of children born out of a
live- in relationship36. But, as per section 16 of the Hindu Marriage Act, 1955,
Pooja shall be considered as a legitimate child of Dr Kumar for the purpose of
inheritingthe self- acquired properties of her father.

30. Section 16(1) states that “Notwithstanding that a marriage is null and void

35
Sumeet Malik, B.P. Leri’s Law of Marriage and Divorce, 538 (3rd edition)
36
Ibid
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under section11, any child of such marriage who would have been legitimate if
the marriage had been valid, shall be legitimate, whether such child is born
before or after the commencement of the Marriage Laws (Amendment) Act,
1976 (68 of 1976), and whether or not a decree of nullity is granted in respect
of that marriage under this Act and whether or not the marriage is held to be
void otherwise than on a petition under this Act.”37 The Hon’ble Supreme
Court of India, in the case of Rameshwari Devi v. the State of Bihar38, held that
if government servant contracted second marriage in the subsistence of first
marriage, children born out of such second marriage would still be legitimate
though the second marriage itself would be void39.

31. Therefore, in the instant matter, Ms. Pooja shall be considered as a legitimate
child of Dr Kumar for the purpose of sharing property and inheritance rights
over Dr Kumar’s estate. But distinction has to be made in terms of whether
Pooja will have a right over Dr Kumar’s ancestral property along with the
property self -acquired by him. The interpretation of the same can be done
through the application of section 16 clause (3) of the Hindu Marriage Act,
1955.
32. Section 16(3) of the Hindu Marriage Act of 1955, states that “Nothing
contained in sub-section (1) or sub-section (2) shall be construed as conferring
upon any child of a marriage which is null and void or which is annulled by a
decree of nullity under section12, any rights in or to the property of any person,
other than the parents, in any case where, but for the passing of this Act, such
child would have been incapable of possessing or acquiring any such rights by
reason of his not being the legitimate child of his parents.”

33. Thus, by the virtue of section 16 clause (3) of the Hindu Marriage Act, 1955,
Pooja shall be entitled to inherit the personal property that was owned by Dr
Kumar. Children from a void or voidable marriage under section 16 of the
Hindu Marriage Act would be entitled to succeed to personal property of a

37
Section 16(1), Hindu Marriage Act (1955)
38
Rameshwari Devi v. the State of Bihar, (2000) 2 SCC 421
39
Ibid
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person dying intestate40.

34. The property rights of illegitimate children extend to the personal property
owned by the parents. In the case of Jinia Keotin v. Kumar Sitaram Manjhi41,
the apex court decided that children born out of void or voidable marriage even
though are not entitled to claim inheritance in ancestral coparcenary property,
would be entitled to claim inheritance in the personal property of the parents.
Illegitimate children are entitled to share self- acquired property of their
parents but no ancestral property or coparcenary property.42
35. Children born out of void marriages are entitled to claim succession to the
properties of their parents only. 43 A child born of void or voidable marriage is
not entitled to claim inheritance in ancestral coparcenary property but is
entitled only to claim share in self-acquired properties. 44

36. Therefore, Pooja, even though is an illegitimate child of Dr Kumar and Ms.
Priya, would hold the title of legitimacy for the purpose of division of self
-acquired property of Dr Kumar. But Pooja will not be entitled to claim
inheritance rights over the property the four acres of ancestral land that was
inherited by Dr Kumar.

40
Sumitra Bai V. Public at Large, 2014 SCC Online Raj 571
41
Jinia Keotin v. Kumar Sitaram Manjhi, (2003) 1 SCC 730
42
Krishna kumara thampuran v. Palace Administration Board, (2007) 1 HLR 593(Ker)
43
Maruti Rau Mane since deceased through LRs. Housabai Maruti Mane v. Shrikant Maruti Mane and others,
(2007) 109 (1) Bom LR 538
44
Neelamma and Ors. v. Sarojamma and Ors, (2006) 9 SCC 612.
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PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS

ADVANCED AND AUTHORITEIS CITIED, IT IS HUMBLY PRAYED THAT
THIS HON’BLE COURT

1. To Declare, the relationship between Dr. Kumar and Priya to not be a

relationship in nature of marriage.
2. To Declare, the claim for family pension benefits by Priya is contrary to
the processof law and shall be set aside.
3. To Declare, Ms. Pooja’s claim for Pensionary benefits stands disputed

4. To Declare, Ms. Priya does not have any claim over Mr. Kumar’s estate,
includingthe self-acquired and ancestral properties.
5. To Declare, Ms. Pooja, the illegitimate child of Dr Kumar and Ms. Priya
has inherent property rights upon Dr Kumar’s self-acquired estate.

AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT THIS

HON‟BLE COURT MAY DEEM FIT IN THE INTERESTS OF JUSTICE, EQUITY
AND GOOD CONSCIENCE.

Sd/-

COUNSEL FOR RESPONDENT

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