Hindu Succession | Is Child From Void/Voidable Marriage Entitled To Coparcenary Share Inherited By Father? Supreme Court Discusses

Among other arguments, the appellant's side also argued that the matter concerned children who were actually considered as legitimate before the enactment of the Hindu Marriage Act in 1955. 

"Prior to 1955, bigamy was not an offence. So all children from second or third marriage were coparceners. Under Shastric law, I had a right and Section16(3) does not take it away...Prior to the Act, illegitimate children were those born to concubines, not to wives. I cannot be legitimate for the purpose of Hindu marriage and illegitimate for Hindu Succession", one counsel submitted in the hearing held on August 14.

It was further submitted that if the condition of a child to be considered legitimate for the purpose of law was having been birthed to his/her father, the child also fulfilled the conditions to be a coparcener.

This argument was countered from the opposing side who argued–

"The legislature wanted to give rights of coparceners to persons other than parents - the grandfather, the uncles etc. Their shares cannot be taken away."

The submissions of both parties were followed by certain observations by CJI DY Chandrachud on the interpretation and implications of key provisions within the Hindu Succession Act. In interpreting the Section 6 of the Hindu Succession Act (which was amended and substituted in 2005), the Chief Justice highlighted that prior to the substitution of the Act in 2005, when a male Hindu died after the commencement of the Act, who had an interest in a Hindu Mitakshara Joint Family Property, his share would devolve by survivorship and not in accordance to the provisions of the act. He said–

"Where the Hindu Mitakshara coparcener left a female heir in Class 1- in this case, the share would devolve not by survivorship but in accordance with the rules for interstate succession or testamentary disposition provided in this Act. Then in 2005 comes the substitution. The impact of the substitution is now first, daughter is made a coparcener. She has the same share, the same entitlement, the same right as a male coparcener. But what was in the form of the exception in proviso to old Section 6 now becomes the norm in the substituted Section 6."

In other words, he stated that this meant that all devolution was now to not take place by survivorship but by the rules governing interstate and testamentary succession referred to in the Hindu Succession Act.

Building up on this interpretation, the CJI added–

"Rule 2 of Section 10 does not speak of sons who are born from valid marriages. It says all "surviving sons". Therefore, Rule 2 could be construed to mean that in the property of the deceased which comes to his share, it is not just the son who is born from the valid marriage or a daughter from a valid marriage but someone who is conferred legitimacy under Section 16 will also get a share."

He elaborated upon this with an example of four brothers (C1, C2, C3, C4) who partition their property immediately before the death of C2. In this situation, each brother would have been allotted 1/4th share of the property. That 1/4th share of C2, the CJI stated would be allotted to those recognised as legitimate under Section 16. He said–

"So, whatever the father gets, in that both the legitimate and the children born from void or voidable marriage will get a share. What belongs to the father is his share in the partition. The child which becomes legitimate under Section 16 will have a share in the interest of the father coparcenary property."

Elaborating further, the CJI built up on the example by stating–

"Suppose the father leaves behind a widow. One daughter is born from a valid marriage and one son is born from an invalid marriage. Now the son will have a share in the property of the father. How do we ascertain the share of the father? Before the death of the father, let's say a notional partition takes place. In that notional partition, because the father ceases to be alive at that point, the father will get one-third share, the widow will get one-third share and the daughter will get one-third share. In the notional partition, the share that the father gets – everyone will get that share."

Upon the comments made by the CJI, the counsel for appellants said–

"A marriage could also be void on the unsoundness of a wife. If that is accepted, a child from even that marriage would not get the share. Therefore the intent of the legislature cannot be so." 

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 on Friday (17.08.2023).

In the previous submissions in the matter, the appellants had described legitimacy as a status conferred on a child as per the Hindu Marriage Act, 1955 which was a beneficent legislation. It was stated that the act had conferred social status of legitimacy on a group of innocent children, who were otherwise treated as illegitimate. Per contra, the respondents had submitted that a coparcener property in Hindu succession, depended upon 'survivorship' and not 'succession'. Thus, restoration of legitimacy on the child should not allow the invasion on the rights of other innocent coparceners.