Kids from void marriage can inherit father’s properties: Orissa high court

The bench of justices Bibhu Prasad Routray and Chittaranjan Dash dismissed a matrimonial appeal of an 80-year-old woman who challenged the order of a family court

Children born out of second or void marriages are entitled to inherit not only self-acquired but also ancestral properties of their father, the Orissa high court has said, citing the Hindu Marriage Act which confers legitimacy on children born out of void marriages and the Hindu Succession Act which gives right to legitimized children to inherit properties of parents.

The bench of justices Bibhu Prasad Routray and Chittaranjan Dash dismissed a matrimonial appeal of an 80-year-old woman who challenged the order of a family court. (Shutterstock)

The bench of justices Bibhu Prasad Routray and Chittaranjan Dash dismissed a matrimonial appeal of an 80-year-old woman who challenged the order of a family court that allowed inheritance right to the children of a 70-year-old woman who was the second wife of her deceased husband.

“Section 16 of the HMA confers legitimacy on children born from void and voidable marriages, ensuring that they are entitled to inherit their parents’ property. Under the HSA, legitimate children including those legitimised under Section 16 of the HMA, fall under the category of Class-I heirs, giving them an undisputed right to inherit the self-acquired property of their parents,” the court said.

The woman in her civil suit sought a declaration that she was the legally wedded wife of the deceased man, and therefore the rightful legal heir. She said that their marriage took place in June 1966 following Hindu rituals. She further alleged that another woman, a retired nurse, worked with her husband but had no legitimate marital relationship with him, and was claiming rights to his ancestral and self-acquired property.

The retired nurse then filed a matrimonial appeal before the high court, challenging the decision on the grounds that she was not given a fair opportunity to present her case.

The high court observed that there was reasonable cause for the appellant’s non-appearance and held that the Family Court’s judgment was passed without giving the retired nurse a proper opportunity to contest the matter. It then remitted the matter back to the Family Court, Bhubaneswar, for fresh adjudication. Additionally, considering the advanced age of both the women, it made an interim arrangement concerning the disputed property and directed that until the final outcome of the case, profits arising from the property would be shared in a 60:40 ratio, with 60% in favour of the first wife and 40% in favour of the second wife.

The Family Court reheard the matter and again declared the 80-year-old as the legally wedded wife of the deceased and his legal heir, thereby reaffirming her right to inherit his ancestral and self-acquired properties. The retired nurse then filed a matrimonial appeal before the Orissa high court last year.

The HC ruled that the Family Court only declared that the first wife is the legal heir of the deceased and entitled to inherit his ancestral and self-acquired property. However, despite discussion in the judgment, it did not clarify that the children born from the second wife have a right over both ancestral and self-acquired property of the deceased.

So far as rights of children born out of void marriage is concerned, the Court held Section 16 of the Hindu Marriage Act confers legitimacy on children born from void and voidable marriages and thereby entitles them to inherit their parents’ property. Furthermore, the Hindu Succession Act says legitimate children, including those legitimised under Section 16 of the Hindu Marriage Act, fall under the category of Class-I heirs, giving them the right to inherit the self-acquired property of their parents.

“Once the share of the deceased parent is ascertained through this notional partition, the legal heirs including children born from void or voidable marriages are entitled to their rightful share in such property,” the bench said.

Accordingly, the Court held that the children born from the two women are entitled to inherit his self-acquired property.