Child of void/voidable marriage has right to parents' ancestral property in Hindu joint family: Supreme Court

The Supreme Court on Friday ruled that children born out of void or voidable marriages can claim a right in their parents' ancestral property in joint Hindu families following the Mitakshara system of law. [Revanasiddappa and Anr v. Mallikarjun and Ors].A Bench of Chief Justice of India (CJI) DY Chandrachud with Justices JB Pardiwala and Manoj Misra held that a child under Section 16(1) and Section 16(2) of Hindu Marriage Act (HMA) would be a legitimate kin under the Hindu Succession Act (HSA)..The Court also said that Section 6 of the HSA, which deals with interest in coparcenary property, lays down a legal fiction that coparcenary property would be treated as if partition had taken place.Consequently, the Court opined that the provisions of the HSA have to be harmonised with those of the HMA to ensure that a child under Section 16(1) and (2) of the HMA has a right in the property of their parents.It was clarified that children from void/voidable marriages will, however, not have the rights to or in the property of any other person in the family..The top court in its judgment made it clear that a child born from a void/voidable marriage does not ipso facto become a coparcener (meaning joint heir in Hindu law) in the Hindu Mitakshara Joint Family. "The basic principle which governs such an HUF is that a coparcener holds a property in common with others. The birth of a person who is a coparcener leads to the acquisition of an interest in the coparcenary property. Shares are liable to increase with birth and reduce with the death of a coparcener," the Court said. As a result of the substitution of Section 6(3) of the Hindu Marriage Act, devolution of the share of a Hindu male coparcener in the property of a Hindu Undivided Family governed by Mitakshara law upon death takes place not by survivorship but by testamentary or intestate succession, the Court further explained. "Section 6(3) has therefore after its substitution provides for devolution by testamentary or intestate succession under the Act and not by survivorship. Section 6 however, continues to recognize the existence of Mitakshara Hindu Joint families.".Background.The Supreme Court had reserved its verdict in the matter on August 18.It had been called on to decide whether the share of children born out of void or voidable marriages is limited only to the self-acquired property of their parents under Section 16(3) of the Hindu Marriage Act.Section 16 of the Hindu Marriage Act presumes the legitimacy of children born from marriages that are null and void under Section 11 of the Act.However, Section 16(3) states that the same shall not be construed as conferring upon any such children rights in or to the property of any person, other than the parents, in cases where they would not be capable of possessing or acquiring any such rights in the absence of the Act..The matter was referred to a three-judge bench after two contrasting opinions were rendered on the topic by coordinate benches of the Supreme Court.In Bharatha Matha and anr v. R Vijaya Renganathan & Ors, the top court in 2010 held that children born out of void marriages were not entitled to claim inheritance of ancestral coparcenary property, and were only entitled to claim a share in the self-acquired property of their father.In an earlier round of the present appeal, the apex court in 2011 had held that such children have a right to self-acquired and ancestral property. It had, thus, disagreed with the decision in Bharatha Matha and referred the matter to a larger bench, observing,"The question which crops up in the facts of this case is whether illegitimate children are entitled to a share in the coparcenary (ancestral) property or whether their share is limited only to the self acquired property of their parents under Section 16(3) of the Hindu Marriage Act."The 2011 ruling had said that the meaning of 'legitimacy' changes with changing social norms, and that law cannot afford to remain static..Today's judgment.Some of the other conclusion the apex court arrived in today's judgment, are:- While conferring legitimacy in terms of sub-section (1) on a child born from a void marriage and under sub-section (2) to a child born from a voidable marriage which has been annulled, the legislature has stipulated in subsection (3) of Section 16 that such a child will have rights to or in the property of the parents and not in the property of any other person;- A child who is legitimate under sub-section (1) or sub-section (2) of Section 16 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’ for the purposes of the proviso;- The rule of devolution by testamentary or intestate succession of the interest of a deceased Hindu in the property of a Joint Hindu family governed by Mitakshara law has been made the norm; - The interest of a Hindu Mitakshara coparcener is deemed to be the share in the property that would have been allotted to him if a partition of the property has taken place immediately before his death irrespective of whether or not he is entitled to claim partition; - 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 HMA 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;.Senior Advocates Kiran Suri, AIS Cheema, V Mohana, and Vivek Chib with advocates Sudhanshu S Choudhari, Ravindra Chingale, Nikhil Majithia, Shirish K Deshpande, Samrat Krishnarao Shinde, PB Suresh, Nishant Ramakantrao Katneshwarkar, Mukesh K Giri, V Prabhakar, and Vivek Solshe appeared in the matter in different petitions..[Read Judgment]