Do Children Of Invalid Marriages Have Right In Their Parents’ Share In Hindu Joint Family Property

Revanasiddappa & Anr. Vs Mallikarjun & Ors. (Supreme Court of India)

The 3- Judge bench of Dr. DY Chandrachud, JB Pardiwala and Manoj Mishra, Justices has settled the issue as to whether a child, born from a marriage that is null and void under the Hindu Marriage Act, 1955 (HMA), is entitled to ancestral/coparcenary property or only to the self-earned/separate property of the parents and has held that when an individual falls within the protective ambit of Sub-Section (1) or Sub-Section (2) of Section 16 of the HMA, they would be entitled to rights in or to the absolute property of the parents and no other person.

Points considered by the Court

• Once Children born from a void marriage (or a voidable marriage which has been declared to be nullity) are declared to be legitimate by sub-sections (1) and (2) of Section 16, they cannot be discriminated against and will be on par with other legitimate children for the purpose of the all the rights in the property of their parents, both self-acquired and ancestral.
• While the relationship between the parents may not be sanctioned by Law, the birth of a child in such a relationship has to be viewed independently of such relationship. The interpretation of Section 16(3) must be based on the constitutional values of equality of status and opportunity as well as individual dignity.
• A child born in such a relationship is innocent and is entitled to all the rights which are given to other children born in a valid marriage subject to the limitation that the right is confined to the property of the parents.
• Section 16(3) as amended does not impose any restriction on the property rights of the children born of a void or voidable marriage except limiting it to the property of their parents. Hence such children will have a right to whatever becomes the property of their parents, whether self-acquired or ancestral.

Section 16(3) in the Hindu Marriage Act, 1955

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 Section 12, 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.

The Judgement revisited

 1. The Legislature has used the expression “property” in Section16(3) but is silent on whether such property is meant to be ancestral or self-acquired.

2. Section 16 contains an express mandate that such children are only entitled to the property of their parents and not of any other relation.

3. Children who are declared to be legitimate under Sub-section (1) or Sub-Section (2) of Section 16 “cannot be discriminated against and they will be on a par with other legitimate children” and are entitled to all the rights in the property of their parents both self-acquired and ancestral.

4. The HMA 1955 is a beneficent legislation intended to bring about social reforms and hence the interpretation of Section 16(3) needs to be reconsidered.

5. Amended Section 16 alters the common law position that a child of a marriage which is void or voidable is illegitimate ipso jure but the benefit is available only when there is a marriage and the marriage is void or voidable in view of the HMA 1955.

6. The interpretation of the Court must be guided by the Constitutional principle of individual dignity. Hence though the relationship between the parents may not be sanctioned by law but the birth of a child in such a relationship must be viewed independently. However, there still exists some limitation of the property rights of the children in that their right is confined to the property of their parents.

The more expansive interpretation in Legitimacy and Coparcenary

1. Children cloaked with legitimacy under Section 16(3) of HAS 1956 are to be considered legitimate for the purpose of partition within the branch of the father. They cannot claim partition in the larger coparcenary, but once the larger coparcenary is partitioned- notionally or actually, and the property comes in the hands of the father, all his children-legitimate per se or legitimate by reason of Section 16(3), have the same right in partition of this property in the hands of the father.

2. The purpose of the amendment is not just to eliminate the stigma experienced by the children of void or voidable marriages, but to treat all legitimate children alike. It is the logical corollary of the legal fiction, which cannot be overlooked.

3. The legislative intent of Act 68 of 1976 is to treat all legitimate children equally, as coparceners. Once the children born out of void and voidable marriages have been treated as legitimate, there can be no discrimination between them and the other legitimate children born out of the lawful marriages.

4. There is a difference between conferring legitimacy on a child and elevating them to the status of the coparcener. While Section 16 of the HMA 1955 grants legitimacy, Sec 16(3) clarifies the extent of inheritance rights.

5. Article 14 of the Constitution of India allows reasonable classification with an intelligible differentia, which justifies treating children from various marriages differently due to distinct legal status. This classification safeguards the interests of both legitimate offspring and innocent coparceners ensuring a balanced approach.

6. A Hindu coparcenary comprises of a propositus* and three lineal descendants. A Hindu coparcenary is a body which is narrower than a Hindu Undivided Family. Before 2005, it included only sons, grandsons and great grandsons who were holders of Joint Property.

(*Propositus- The person immediately affected by or concerned with an action i.e. individual, person etc.)

Conclusion

1. In terms of sub-section (1) of Section 16, a child of a marriage which is null and void under Section 11 is statutorily conferred with legitimacy irrespective of whether (i) such a child is born before or after the commencement if Amending Act 1976; (ii) a decree of nullity is granted in respect of that marriage under the Act and the marriage is held to be void otherwise than on a petition under the enactment.

2. In terms of sub-section (2) of Section 16 where a voidable marriage has been annulled by a decree of nullity under Section 12, a child ‘begotten or conceived’ before the decree has been made, is deemed to be their legitimate child notwithstanding the decree, if the child would have been legitimated to the parties to the marriage if a decree of dissolution had been passed instead of a decree of nullity.

3. While conferring legitimacy in terms of sub-section (1) on a child born from a void marriage and under sub-section (2) to a child born from a voidable marriage which has been annulled, the legislature has stipulated in sub-section (3) of Section 16 that such a child will have rights to or in the property of the parents and not in the property of any other person.

4. While construing the provisions of Section 3(1)(j) of the HSA 1956 including the proviso, the legitimacy which is conferred by Section 16 of the HMA 1955 on a child born from a void or, as the case may be, voidable marriage has to be read into the provisions of the HSA 1956.

5. Section 6 of the HSA 1956 continues to recognize the institution of a joint Hindu Family governed by the Mitakshara Law and the concepts of a coparcener, the acquisition of an interest as a coparcener by birth and rights in coparcenary property. By the substitution of Section 6, equal rights have been granted to daughters, in the same manner as sons as indicated by sub-section (1) of Section 6;

6. The provisions of the HSA 1956 have to be harmonized with a mandate in Section 16(3) of the HMA 1955 which indicates that a child who is conferred with legitimacy under sub-sections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents. The property of the parent, where the parent had an interest in the property of a Joint Hindu Family governed under the Mitakshara law has to be ascertained.

FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER

A. The reference to the three Judge Bench