This paper talks about the legitimacy of children who were born out of void and
voidable marriages. In regards to this, a total interpretation of Section 16 of
The Hindu Marriage Act will be done in order to find out the rights of such a
child and the claim of his/her on ancestral property. The paper will also bestow
light on the void and voidable marriages and talk about the essentials of
marriage per Hindu Marriage Act 1955 given in Section 5 of the act. It will also
clarify the grounds on which the legitimacy of such a child is questioned and
the supporting reasons behind it.
This paper will make its priority to clear the
view on the question that arises between the child born from child marriage
their rights as compared to the child born out of lawful marriage. both liberal
and neutral views will be taken in context while discussing the topic. Various
case laws will also be taken as precedents to justify the arguments. The views
of Hindu Marriage Act about resolving the issue has also been taken under
My views are hereby expressed on this topic as per my best abilities and
knowledge on the matter.
Whether you are married or not, the status of your children has a huge impact on
your life. In fact, it defines their way of life. The rights they confer, the
power they hold, and the responsibilities they bear all flow from their place in
society. In general, it has been claimed that children born to valid marriages
are legitimate, whereas children born to invalid or invalid marriages (or those
born without casual sexual interaction, extramarital affairs, or without formal
marriage) born child) is considered an illegitimate child. Societal and personal
laws have traditionally drawn a line between the two.
Being different is usually
associated with difficulties, lack of social acceptance, discrimination,
discord, etc. On the other hand , in contrast to illegitimate children,
legitimate children enjoy a proper position in society and Responsibility for
the matter, right to inheritance, etc. However, this is incorrect. All children
born of an invalid or invalid marriage are not considered illegitimate. The
annulment concept originates in early English law, where ecclesiastical courts
exercised jurisdiction over marital disputes. Several obstacles were set by
English law, violations of which cast doubt on the validity of the marriage.
These obstacles are divided into absolute and relative obstacles leading to void
and voidable marriages respectively
The Hindu Marriage Act of 1955 distinguishes between void and voidable
marriages. Article 16 of the law states that children of all voidable and void
marriages are considered legitimate but are entitled to inherit only the
property of their parents. In general, a legal child is one whose parents are
legally married at birth. H. Children born of a valid marriage. However, the
range of legal children has been extended in seconds. Expanded. HMA 16, 1955.
What is Void and Voidable Marriage:
According to section 11 of the Hindu Marriage Act 1955 Void marriage is Any
marriage solemnized after the commencement of this Act, shall be null and void
and may , on a petition presented by either party thereto against the other
party, be so declared by a decree of nullity if it contravenes any one of the
conditions specified in clause (i), (iv) and (v) of section 5.
According to section 12 of Hindu Marriage Act 1955 Voidable Marriage is Any
marriage solemnized; whether before or after the commencement of this Act, shall
be voidable and may be annulled by a decree of nullity on any of the following
grounds, namely: that the marriage has not been consummated owing to the
impotence of the respondent; or that the marriage is in contravention of the
condition specified in clause (ii) of section 5that the consent of the
petitioner, or where the consent of the guardian in marriage of the petitioner
was required under section 5 as it stood immediately before the commencement of
the Child Marriage Restraint (Amendment) Act, 1978 (Act no.2 of 1978) the
consent of such guardian was obtained by force or by fraud as to the nature of
ceremony or as to any material fact or circumstance concerning the respondent;
or that the respondent was at the time of the marriage pregnant by some person
other than the petitioner.
What is the Legitimacy of a Child?
In order to answer this we have to trace the history behind the phrase
legitimacy of a child, In medieval Wales, a "bastard" was simply defined as a
child who was not recognized by his father. enjoyed the same legal rights,
including After England conquered Wales, English law prevailed in Wales. Under
English law, unlike civil law, a bastard could not be heir to the property, nor
could he be justified by his father's subsequent marriage to his mother, with
one exception being his.
When his father later married his mother and an older
illegitimate son ("bastard Ennie") owned the land after his father's death, he
could retroactively claim ownership of his land after his death. Converted to
real estate. The bastard brother ("Merrie Puynet") claims no claim to the land.
The 1926 Legitimacy Act in England and Wales justified the birth of a child,
provided that if the parents subsequently married each other, they had not
married someone else in the meantime.
The Legality Act of 1959 extended legality
to cases where the parents had intermarried, or to marriages of convenience that
the parents mistakenly believed to be valid. Neither the 1926 Act nor his 1959
Act changed the British Succession Act. Family Law Reform Act 1969 (c. 46)
Allowed bastards to inherit the property of their parents.
In orthodox and civil
law, probable offspring of marriage were also considered legal. The status a
child acquires at birth as a result of a valid marriage or union meeting the
requirements for Hindu marriage under Section 5 of the Hindu Marriage Act, 1955,
i.e. the status of a child acquired by law, shall be granted to the married
parents. and a child conceived before the divorce. A child's legal status
determines the child's rights and responsibilities. It shows how children should
be treated in society.
Children receive their father's first and last name.
Gives the child the right to inherit the property of both his father and his
ancestors. The Hindu Marriage Act of 1955 distinguishes between valid and
invalid marriages. Children born of an invalid or void marriage are entitled to
legitimacy and property rights under Section 16 of the Law.
Illegitimacy and Legitimacy of a Child according to the Hindu Law:
A marriage is considered valid under Hindu law if it meets all the conditions
set out in Sections 7 and 5 of the Hindu Marriage Act, 1955. Children born of
such valid marriages are perfectly legal. If the conditions set forth in Section
5 of the Act are not met, the resulting marriage may or may not be void under
Sections 11 and 12 of the Act. Annulled Marriage Section 11.19 of the Hindu
Marriage Act 1955 defines an invalid marriage.
It states that a marriage is void
if it violates any of the conditions set forth in Section 5 and Children born
from such marriages are considered illegitimate. Invalid Marriage Section 12.21
of the Hindu Marriage Act 1955 sets out the grounds for an invalid marriage. If
a marriage is declared void for any of the reasons set out in Article 12, the
children born of such marriage shall be considered illegitimate. Apart from the
above, if proper ceremonies are not performed at the time of marriage per
Article 7 of the Hindu Marriage Law, the resulting marriage will not be valid.
Children born of such marriages also fall under the category of illegitimate
Therefore, a child who falls under Hindu law as an illegitimate child
can be summarized as follows.
- Children born of an invalid marriage;
- Children from invalid/cancellable marriages;
- Children born from illicit relationships;
- Children born by concubines;
- A child born out of an invalid marriage due to a lack of proper ceremonies.
Essentially, according to Hindu law, the rule of legality depends on marriage.
Children's social status is determined by their parent's actions. Children are
legal if they are in a valid marriage. But if the parents were foolish and
reckless to enter into an annulled marriage, or if a child conceived out of
wedlock, the resulting innocent child is said to be illegitimate. Innocent
children who cannot influence or control their parents' behaviour must suffer
Rights Of the Illegitimate Child In Hindu Law (Past):
The Hindu law relating to illegitimate children can be discussed under the
following four heads:
- Joint Family Property and Partition
Prior to the enactment of the Hindu Adoption Act of 1956, an
illegitimate Hindu child was entitled to support from his father's common
property and any property he acquired himself. Fathers were obligated to support
their minor illegitimate children, regardless of whether they had property or not.Under the Sudras, illegitimate children were entitled to alimony if they
could not inherit or receive a portion of the division. However, this right
could not be enforced under Hindu law if the mother was not Hindu. In this case,
the illegitimate child can bring a lawsuit against the alleged father under the
Code of Criminal Procedure. Illegitimate daughters had no legal remedy under
Hindu law. However, they were entitled to alimony under the Code of Criminal
Procedure, which was enforceable only while the suspect's father was alive and
ended with his death.
An illegitimate child has no right to succeed his father.
However, according to Hindu inheritance law, an illegitimate child is considered
to be correlated with the mother by an illegitimate relationship, and the
illegitimate child is considered to be correlated with the mother by a
legitimate relationship and therefore can inherit from each other. Based on the
same law. A illegitimate child can inherit the property of his mother or the
illegitimate brothers and sisters. A mother can also inherit the property of an
illegitimate child. The father has no right to inherit the property of the
Joint Family Property and Partition:
Unlike legitimate children, illegitimate
children have no interest in the ancestral property in their father's hands. He
also forms no accomplice with him, so that during the life of the father the
rights of the illegitimate child are limited to maintenance. It may be equal to
a legitimate son's share.
Mother had custody. A mother is considered the natural guardian
of an illegitimate child. The father did not have custody of the illegitimate
child while the letter was a minor, and usually the mother of the illegitimate
child had custody of the child during the parenting period.
Rights of an Illegitimate Child in Hindu Law (Present):The Hindu law relating to illegitimate children can be discussed under the
following four heads:
- Joint Family Property and Partition
According to the Hindu Adoption Act of 1956, Hindus are obliged
to take care of illegitimate children while they are alive. Support obligations
for illegitimate children now apply to both fathers and mothers. Not only
illegitimate children but also illegitimate children have the right to be raised
by their parents. However, maintenance claims apply only to minors. Illegitimate
children are not entitled to child support from their parents once they reach
the age of majority. Such children are also not eligible to receive child
support if they are no longer Hindus due to conversion to another religion.
Furthermore, under Hindu adoption and maintenance law, an illegitimate child of
a deceased Hindu is a minor, and an illegitimate daughter of a deceased Hindu,
as long as she remains unmarried, may be disqualified by the heirs of the
deceased. You have the right to be supported. Inherited by those who inherit
property, theirs or the property of a testator.
However, such sons or daughters are not entitled to support under the Act if
they are no longer Hindus by conversion to another religion. However, an
illegitimate child who ceases to be a Hindu may seek support from his father
under the Code of Criminal Procedure.
After the passage of the Hindu Succession Act of 1956, the
illegitimate sons of the Sudras could no longer inherit their father's property.
Previously, if an illegitimate son of a Shudra was a Dasiputra, he had the right
to succeed his father. Now, according to the law, he cannot.
Joint Family Property and Partition:
Before the passage of the Hindu
Succession Act, after the father's death, an illegitimate child entered his
estate as co-owner with the father's legitimate children and was given the right
to force division on the legitimate children. , is currently legally unable to
follow in his father's footsteps as he is no longer legally related.
Mothers are considered guardians of nature. If both parents of
an illegitimate child are Hindu, Buddhist, Jain, or Sikh in their religion, or
any parent of such child is Hindu, Buddhist, Jain, or Sikh in their religion,
and if a such child was raised as a member of a religion, the tribe, community,
group or family to which the parent belongs or has belonged, the Hindu
Minorities and Guardianship Act 1956, and Section 6 of the Act.
In the case of
an illegitimate boy or an illegitimate unmarried girl, according to the Article,
shall apply to such. In the case of children, the mother is the custodian, after
that, the father is the custodian, and in the case of a married woman, the
husband is the custodian. However, under this law, such a guardian shall not be
deemed to be such a guardian if he or she ceases to be a Hindu or renounces the
world completely and definitively by becoming a hermit or an ascetic. You are
not entitled to act on.
Case Laws Related to the Legitimacy Of the Child:Some of the Landmark Cases of the Field of Illegitimacy are as follows:
- The Supreme Court of India, Revanasiddappa v. Mallikarjun, held:
A constitutional value enshrined in the preamble to the Constitution that focuses on the concept of equal status and opportunity and individual dignity. Courts must be reminded that the parental relationship may not be recognized by law, but the birth of a child in such a relationship must be considered independently of the parental relationship not a child born in such a relationship is innocent and has all the rights conferred on any other child born in a valid marriage.
- In Jinia Keotin v. Kumar Sitaram Manjhi, the Supreme Court stated:
Under simple law, a child must be born in a legal marriage to be treated as legitimate. If the marriage itself is void due to a violation of law, the children born of that marriage, either by itself or by its declaration or annulment, shall cause the demoralization of the children born of the parties to such marriage.
- Kattari Nagaya Kamarajendra Ramasami Pandiya Naicker v. T.B.K. Visvanathaswami Naicker (deceased) & Ors.
The Privy Council ruled that if a sudra dies leaving an illegitimate son, daughter, wife, and certain minors, both the illegitimate son and his wife are entitled to an equal share of his property. An illegitimate child has half the rights that he would have had had he been the rightful heir. An illegitimate child of a sudra born to a slave or a permanently retained concubine is entitled to share his father's property with the illegitimate child.
- Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityan and Mansingh & Anr
was the fact that Raja was his Sudra and died leaving an illegitimate son, an illegitimate son, an illegitimate daughter and his three widows. The legitimate son died and the question was whether an illegitimate son could inherit the Raja's fortune. The Privy Council has ruled that illegitimate children have the right to inherit the raja on the basis of survival.
- In Thrumurthi Ranayammal v. Thrumurthi Muthamal,
The Madras High Court stated: parliament. The status and status of children born of an annulled marriage must clearly be the same whether or not the marriage has been annulled under Article 11.
- Shanta Ram v. Smart. Dargubai
The Bombay High Court has determined that children of an invalid marriage do not acquire inheritance rights to the same extent as children of an invalid marriage, despite a judgment of annulity, but are considered legitimate.
Indian society, being a metaphysical society, is undergoing a period of
transformation consisting of two broad categories of people with two different
ideologies. One of his in the group believes in the orthodox ways of Hinduism,
where having children out of wedlock is taboo and there is a great deal of
prejudice against being born out of wedlock. The other group of societies
consists of those who have a rational, liberal attitude and do not see
illegitimacy as a stigma.
They do not condemn the existence of illegitimate
children, but irresponsible couples. The laws of society also change according
to the times and circumstances. Illegitimate children should be treated more
leniently, and laws should be changed to benefit all people.
- section 16(3) of the amended Hindu Marriage Act, 1955
- 1 SCC 730
- (1923) 25 BOMLR 577
- I.A.No.640of 2002 in.S.No.16of 2002 c
- AIR 1987 Bom 182, 1987 1 BomCR 714, 1987 89 BOMLR 51