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:-

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What is distinction between “Void Marriages” and “Voidable Marriages” as per Hindu Marriage Act?

 Under the Hindu Marriage Act 1955, "Void Marriages" and "Voidable Marriages" are two distinct legal concepts:

1. Void Marriages: A void marriage is considered invalid from the beginning, as if it never took place. It is void ab initio, meaning it is treated as though it never existed. A marriage is void if it contravenes Clauses(1) (4) and (5) of S 5 of Hindu Marriage Act.  The grounds for a marriage to be declared void are specified in Section 11 of the Hindu Marriage Act. Some common grounds for void marriages include:

• Bigamy: When either party is already married to another person at the time of marriage.{Clause 1}

• Prohibited relationship: When the parties are within the degrees of prohibited relationship, such as close blood relatives.{clause 4}

• Sapindas: If The parties are sapindas of each other.{Clause 5}.

2. Voidable Marriages: A voidable marriage, on the other hand, is initially considered valid, but can be annulled by either party based on certain grounds specified in Section 12 of the Hindu Marriage Act. The grounds for a marriage to be declared voidable include:

sub-Section(1)

• (a )Non-consummation: When the marriage has not been consummated due to the impotence of either party.

• (b )Mental disorder: When either party suffers from a mental disorder that makes them unfit for marriage.

• (c ) Consent obtained by fraud or force: When consent for the marriage was obtained through coercion, fraud, or undue influence.

• (d) Respondent pregnant at the time of marriage by some person other than the petitioner.

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How to appreciate evidence in case of petition for annulment of marriage?

Voidable Marriages (1) 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 xxx xxx xxxx

(b)that the marriage is in contravention of the conditions specified in clause (ii) of section 5.

Section 5 provides that a marriage may be solemnized between any two Hindus if the conditions specified in the section are fulfilled. Amongst the other conditions stated therein in sub-section (ii) it is laid down that at the time of marriage neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind or though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children. The clause lays down as one of the conditions for a Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder, insanity or epilepsy and section 12(1)(b) refers that any marriage shall be voidable and may be annulled if the marriage is in contravention of the condition specified in clause (ii) of section 5. On a plain reading of the said provision it is manifest that the conditions prescribed in that section, if established, disentitles the party to a valid marriage. The marriage is not per se void but voidable under the clause. Such conditions in the very nature of things call for strict standard of proof. The onus of proof is very heavy on the party who approaches the Court for breaking a marriage already solemnized.

An objection to a marriage on the ground of mental incapacity must depend on a question of degree of the defect in order to rebut the validity of a marriage which has in fact taken place. As noted earlier, the onus of bringing a case under this clause lies heavily on the petitioner who seeks annulment of the marriage on the ground of unsoundness of mind or mental disorder. The court will examine the matter with all possible care and anxiety.

Supreme Court of India

R. Lakshmi Narayan vs Santhi on 1 May, 2001

Bench: D.P. Mohapatra, U.C. Banerjee

           CASE NO.:
Appeal (civil) 5028  of  1999

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