Legitimacy of Children Under Void and Voidable Marriages

                                                                                                                                Shama Sinha
                                                                                                                                         Advocate
                                                                                                                                Patna High Court
Legitimacy of Children Under Void and Voidable Marriages

Section 16 of the Hindu Marriage Act 1955 provides that "(1) Notwithstanding that a marriage is null and void under Section 11any child of such marriage who would have been legitimate if the marriage had been valid shall be legitimate, whether such child is born before or after the commencement of Marriage Law (Amendment) Act 1976 and whether or not decree of nullity is granted in respect of that marriage under this Act and whether or not marriage is held to be void otherwise than on petition under this Act.

(2) Where a decree of nullity is granted in respect of voidable marriage under Section 12, any child begotten or conceived before the decree is made who would have been legitimate child if the parties to the marriage at the date of decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in Sub-Sections (1) and (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 right in or to the property of any person other than parents, in any case where but for passing of this Act, such child would have been incapable of possessing or requiring any such rights by reason of his not being legitimate child of his parents.

So the object of Section 16 of the Hindu Marriage Act is to confer the status of legitimacy on children born in void and voidable marriages. Section 16 by legal fiction lays down that even if a child born of void or voidable marriage is conferred with the status of legitimacy but it is debarred from inheriting to property of any person other than its parents.

In Rameshwari Devi v. State of Bihar, AIR 2000 SC 735 Supreme Court has observed that marriage of parties may, because of being in contravention of clause (i) of Section 5 of Hindu Marriage Act was void marriage but under Section 16 of the said Act children of void marriage are legitimate for the purpose of succession to property of father.