Hindu Succession | Can Children Of Void/Voidable Marriages Claim Right In Their Parents' Ancestral Property? Supreme Court Starts Hearing Reference

The Supreme Court on Wednesday heard arguments on the issue of whether children born out of a void or voidable marriage had a right in parents' ancestral property as per the Hindu law. The bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra was hearing a reference of Revanasiddappa vs. Mallikarjun (2011) 11 SCC 1 regarding the scope of Section 16(3) of the Hindu Marriage Act 1955.

In the day long proceedings, two opposing views arose from the arguments raised before the bench.

First, that the Hindu Marriage Act was a beneficial legislation and its intent was to confer social status of legitimacy on a group of innocent children who were otherwise treated as illegitimate. Further, no child should be considered 'illegitimate' as it was the marriages which resulted in the bearing of such children which had a degree of illegitimacy, not the child. Thus, the status of legitimacy given to children under Section 16 of the Hindu Marriage Act also provided them a right in their parents' ancestral property. Digging the existing jurisprudence in the matter, various judgements were cited before the court. One such judgement was Smt Parayankandiyal Eravathkanapravan Kalliani Amma & Ors v. K Devi & Ors (1996). In this judgement, legitimacy was described as a status. It added–

"Motherhood, although also a legal relationship, is based on a fact, being proved demonstrably by parturition. Fatherhood, by contract, is a presumption. A woman can have sexual intercourse with a number of men any of whom may be the father of her child; though it is true that modern serology can sometimes enable the presumption to be rebutted as regards some of these men. The status of legitimacy gives the child certain rights both against the man whom the law regards as his father and generally in society."

Stating that the Hindu Marriage Act, 1955 was a beneficent legislation and, therefore, had to be interpreted in such a manner as advances the object of the legislation, the judgement stated that the conferment of social status of legitimacy on a group of innocent children, who are otherwise treated as illegitimate, was the prime object of Section 16.

A judgement authored by Justice DY Chandrachud, as he was then, was also cited before the bench. This was the 2018 judgement of Union of India v VR Tripathi. Here, the Supreme Court held that benefit of compassionate appointment scheme cannot be denied to the children born out of a second marriage. The bench took note that, in Section 16(1) of Hindu Marriage Act, it is provided that a child born from a marriage which is null and void under Section 11 is legitimate. 

The opposing view that arose in the matter was that the legitimacy conferred on a child by Section 16 did not mean that the said child could be raised at the level of a coparcener as a coparcener property in Hindu succession, depended upon 'survivorship' and not 'succession'. It was stated that a plain and literal interpretation of Section 16 was to be adopted in the matter to the safeguard the intent of the legislation. Further, it was submitted that self acquired property of the parents, divorced by succession and not by survivorship, could be inherited by illegitimate children. However, restoration of legitimacy on the child should not allow the invasion on the rights of other innocent coparceners. Stating that a reasonable classification existed between children born out of a void or voidable marriage and a valid marriage, it was argued that not providing illegitimate children with rights in coparcener property was a 'balancing act'. 

While the court seemed interested in reserving the judgement, various counsels expressed their desire to also put forth their views in the matter. Accordingly, the bench decided to schedule further hearing for the matter today (27.07.2023).

Background