Kids of ‘invalid marriages’ have right to property share: Supreme Court

The top court, however, held that the children from such “void or voidable” marriages will not be able to inherit the ancestral properties.

New Delhi: Children born out of invalid marriages can claim a right in their parents’ ancestral property under the Hindu succession law, the Supreme Court ruled on Friday.

The Supreme Court passed the judgment while hearing a petition pertaining to legal questions on whether children, born out of annulled or invalid marriages, were entitled to a share in the ancestral property of their parents under Hindu laws. (HT Archives)

The top court, however, held that the children from such “void or voidable” marriages will not be able to inherit the ancestral properties of the coparceners other than their parents.

To be sure, the ruling only applies under specific conditions, and to specific marriages that should not have taken place in the first place according to the law.

A bench headed by chief justice of India (CJI) Dhananjay Y Chandrachud passed the judgment while hearing a batch of petitions pertaining to legal questions on whether children, born out of annulled or invalid marriages, were entitled to a share in the ancestral property of their parents under Hindu laws.

The top court said that its verdict would be applicable only to Hindu joint family properties governed by the Hindu Mitakshara law, under which the son, grandson and great grandson have a right to the family property through birth.

“Once the share of the deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs, including the children who have been conferred with legitimacy under Section 16 of the Hindu Marriage Act, 1955, will be entitled to their share in the property which would have been allotted to the deceased upon the notional partition, if it had taken place,” the bench, also comprising justices JB Pardiwala and Manoj Misra, said.

“Since the child conferred with legitimacy under Section 16 is not a coparcener, the branch comprises the father and his children born out of the valid marriage. As such, the property, once partitioned from the larger coparcenary, and in the hands of the father, for his own branch, is not the father’s separate property, until the partition happens within the branch,” it added.

Section 16 of the Hindu Marriage Act (HMA) legitimises children born out of void or voidable marriage. A marriage can be annulled as void under section 11 of the Act if either party had a living spouse at the time of marriage, among other reasons. Although such children were given legitimacy, section 16(3) of HMA restricted their property rights to the property of the parents and not to the larger joint family estate.

“Nothing contained in sub-section 1 (legitimising children from void marriage) or sub-section 2 (legitimising children from voidable marriage) 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,” the provision said.

Harmonising the provisions of the HMA and the Hindu Succession Act (HSA), 1956, the bench said, “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.” In other words, the court held that a child who is legitimate under section 16(1) and 16(2) of the HMA would, for the purposes of section 3(1)(j) of the HSA 1956, fall within the ambit of the explanation “related by legitimate kinship” and cannot be regarded as an “illegitimate child”.

The bench was hearing a reference against a two-judge bench judgment in the 2011 Revansidappa vs Mallikarjun case wherein the top court doubted a law laid down by earlier decisions which held that a child born out of void or voidable marriage is not entitled to ancestral property and such a right is restricted only to self-acquired property. Subsequently as the same issue arose in several petitions, the matters were clubbed and heard together.

“The individual upon whom legitimacy has been conferred by section 16(1) or section 16(2) of the HMA 1955 would be entitled to a share in the property that would have been allotted to their parent assuming a notional partition immediately before the death of the parent. Such a construction would be in accordance with section 6(3) HSA and would harmonise it with the provisions of Section 16(3) of the HMA 1955,” the bench said.

The court clarified that under section 16 HMA, a child born out of a void or voidable marriage will not be conditional upon the marriage being annulled by a decree of annulment.