Saturday 2 December 2023

Notes on Rights of the child born out of void and voidable marriage as per S 16 of Hindu Marriage Act

 S 16 of Hindu Marriage Act:- Legitimacy of children of void and voidable marriage-

1) Children of void and voidable marriage as per S 11 or S 12 of Hindu marriage Act are deemed to be legitimate.
2) there must be marriage between man and woman.S 16 can not invoked if there was no marriage.
3) such a child is not entitled to inherit property of any person other than his parents.

Leading caselaw:-

(ix) For the purpose of ascertaining the interest of a deceased Hindu Mitakshara coparcener, the law mandates the assumption of a state of affairs immediately prior to the death of the coparcener namely, a partition of the coparcenary property between the deceased and other members of the coparcenary. 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; and

(x) The provisions of the HSA 1956 have to be harmonized with the mandate in Section 16(3) of the HMA 1955 which indicates that a child who is conferred with legitimacy Under Sub-sections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents. The property of the parent, where the parent had an interest in the property of a Joint Hindu family governed under the Mitakshara law has to be ascertained in terms of the Explanation to Sub-section (3), as interpreted above.


Civil Appeal Nos. 2844 of 2011,

Revanasiddappa and Ors. Vs. Mallikarjun and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, C.J.I., J.B. Pardiwala and Manoj Misra, JJ.

Author: Dr. D.Y. Chandrachud, C.J.I.

Decided On: 01.09.2023

Citation: 2023/INSC/783 : MANU/SC/0956/2023.

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