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The Supreme Court on September 1 held that a child born of a void or voidable marriage can inherit the parent’s share in a joint Hindu family property. A three-judge Bench headed by Chief Justice of India D.Y. Chandrachud however clarified that such a child would not be entitled to rights in or to the property of any other person in the family. A voidable marriage is one that is made invalid by the husband or wife through a decree. A void marriage is invalid at its very inception.
Chief Justice Chandrachud said the first step to the inheritance of a child from a void or voidable marriage would be to ascertain the exact share of his parent in the ancestral property. This could be done by means of conducting a “notional partition” of the ancestral property and calculating how much of the property the parent would have got immediately before his death. Once the share of the deceased parent in the property is ascertained through such a notional partition, his heirs, including his children by means of void or voidable marriage, would be entitled to their portions in the share.
The Chief Justice said that Section 16 of the Hindu Marriage Act has statutorily conferred legitimacy to children born out of void or voidable marriages. In fact, Chief Justice Chandrachud pointed out that Section 16(3) stipulates that children from void and voidable marriages would have a right to their parents’ property. The court said the intent of granting legitimacy to such children in the Hindu Marriage Act should also be reflected in the Hindu Succession Act, which governs inheritance. Children from void or voidable marriages come within the ambit of “legitimate kinship” and cannot be regarded as illegitimate by the Hindu Succession Act when it comes to inheritance.
The case before the three-judge Bench was focused on an amended provision in the Hindu Marriage Act, Section 16(3). The case was referred to a larger Bench in 2011 after a Division Bench of the apex court refused to follow past precedents and championed the cause of children born out of illegitimate marriages.
“With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. The concept of legitimacy stems from social consensus, in the shaping of which various social groups play a vital role,” Justice Ganguly, who authored the 2011 judgment, had observed.
During the hearings on the reference, Chief Justice Chandrachud had agreed with the Division Bench’s findings that children from void and voidable marriages had rights over the property, whether self-acquired or ancestral, of their parents
[Extracted with edits and revisions from “Children from void, voidable marriages entitled to parents’ share in ancestral property: Supreme Court”, by Krishnadas Rajagopal, The Hindu, https://www.thehindu.com/news/national/children-from-void-voidable-marriages-arelegitimate-can-claim-rights-in-parents-properties-sc/article67259229.ece ]