Children born out of ‘void or voidable’ marriages can claim rights in parents’ self-acquired and ancestral property: Supreme Court

Satya Prakash

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New Delhi, September 1

Reiterating that children born out of “void or voidable” marriages are legitimate under the Hindu Marriage Act 1955, the Supreme Court on Friday ruled that they can claim rights in parents’ self-acquired and ancestral property under the Hindu Succession Act, 1956.

Harmonizing provisions of the Hindu Marriage Act, 1955 — that confer legitimacy on children born out of void and voidable marriages but disentitle them to inherit ancestral property of their parents, a three-judge Bench led by CJI DY Chandrachud said such children would be treated as Class-1 heir and would be entitled to share in their parents’ ancestral property under the Hindu Succession Act, 1956.

Section 16(1) of the Hindu Marriage Act, 1955 confers legitimacy on children born out or a marriage declared to be null and void under Section 11 of the Act. Under Section 16(2) of the Act, a child begotten or conceived before the voidable marriage is declared void is deemed to be a legitimate child of their parents.

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

In Jinia Keotin’s case (2003), the top court’s two-judge Bench held that “a child born of void or voidable marriage is not entitled to claim inheritance in ancestral coparcenary property but is entitled only to claim a share in self-acquired properties and the ruling was followed in several other cases.” However, another two judge Bench doubted this legal position in Revanasiddappa vs. Mallikarjun (2011) as a result of which the matter was referred to a three-judge Bench.

Friday’s three-judge Bench verdict settles the legal position, by making children born out of void and voidable marriages entitled to both self-acquired and ancestral property.

“The provisions of the HSA 1956 have to be harmonized with the 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 in terms of the Explanation to sub-section (3) of Section 6 HAS…,” the top court said.

The Bench, however, clarified that the reference to the three Judge Bench in these cases was confined to Joint Hindu families governed by Mitakshara law.