Hindu Succession | 'Issue Is Of Parents' Ancestral Property' : Supreme Court Reserves Judgment On Right Of Child From Invalid Marriage

The Supreme Court today reserved its judgement in 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 today's hearings, at the very outset, CJI DY Chandrachud remarked that the issue primarily pertained to the intersection between Section 16(3) of Hindu Marriage Act (HMA) and Section 6 of the Hindu Succession Act (HSA). For context, Sections 16(1) and 16(2) of the HMA grant legitimacy to children born out of void or voidable marriages respectively. However, Section 16(3) provides that the aforementioned provisions of Section 16 do not provide children of void or voidable marriages "any rights in or to the property of any person, other than the parents". Section 6 of the HSA provides for the devolution of interest in coparcenary property. 

In the context of these provisions, the CJI underlined that the question that arose was– "When does the property become of the parent?"

The CJI further highlighted that the 2005 amendment to Section 6 expanded the ambit of coparcenary property by bringing in daughters within the ambit of the same and Section 6(3) replaced the rule of devolution by survivorship with devolution by interstate or testamentary succession. As per Section 6(3), on the death of coparcenor, a notional partition is deemed to have taken place in the property. The Explanation to Section 6(3) states that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

"The point we must consider is a narrow point which is when does the property become the property of the parents for the purpose of Section 16(3)?," asked the CJI.

The CJI further asserted that a few things must be kept into mind while dealing with the provisions, the most important of which was that Section 6(3) as amended does not abrogate the principle of a Hindu Undivided Family. It also does not abrogate the principle of coparcenary property. 

The Chief Justice then went on to give an example of a situation where immediately before the death of a Hindu male coparcener, partition had taken place. In this situation, his interest would have been in the share allotted to him immediately before the death. The CJI explained that if a child from a void/voidable marriage was brought into the situation and allotted a share, the increase in his father's share would have affected someone else's share. Second, he stated that in this situation the property would become the father's property once the notional partition was done. He said–

"So one argument could be that since the father has an interest in the entire property, the child of the void/voidable marriage must participate in that. But it appears at the more correct way of looking at it would be that the interest of the father fructified into a share and the property become a property of the parent only at the time of the notional partition which takes place immediately before his death."

Illustration given by CJI

CJI illustrated this with an example. Suppose there are four brothers C1, C2, C3 and C4. C2 dies. Notional partition takes place immediately before his death. C2 has a widow, a daughter from a valid marriage and a son from an invalid marriage. So if a notional partition is to take place, C2 will be getting 1/4th of the coparcenory property.  So that share which would be allotted to C2, namely the 1/4th, would be distributed among him, his wife and his daughter - 1/12th each. Further, the 1/12th share of C2  would be distributed among the wife, the daughter and the son from the invalid marriage. 

CJI further said that the case of the appellants is that the 1/4th share of C2 also should be allotted to the son from the invalid marriage. "That can't be. Because, to hold so would be to make the son from the invalid marriage a coparcenor and that would directly conflict with Section 16(3)", CJI said.

This was followed by the appellants arguing that the legislature had refrained itself from mentioning ancestral property in Section 16 because the moment a child was born, he got a right in the ancestral property. To this, the CJI said–

"You are saying that the moment a child is born even if he is born out of a void marriage, he gets a right in the ancestral property. The moment you say that it directly affects the interest of the other people."

The appellants clarified that even children from void or voidable marriages were coparceners till 1955 and had a birth right in the ancestral property. It was highlighted that if a widow adopted a child post the death of the husband, such a child would not have the same rights as a coparcener. The reason for the same was that such a child did not have a "birth right" on the ancestral property. It was reiterated that the object of the legislation was to prohibit void and voidable marriages and not to exclude such children from the property rights. 

One counsel put his point forth by using an example of a couple living in a "live-in relationship". Elaborating upon his example he asked the court to assume that a couple was living in a live in relationship and gave birth to two children. Thereafter, the couple got married and gave birth to another child. In this situation he asked– "What happens to the rights of the first two children?" He argued that the children must be treated equally and providing additional property to children born of valid marriages as opposed to children born of void or voidable marriages was in contravention to Article 14 and against the mandate of the HMA. 

Issue is about ancestral property, not self-acquired property

Another counsel argued as per Section 16(3), the child from invalid marriage gets right only in the "self-acquired property" of the parent. This was countered by another counsel saying that the provision does not use that expression and that thee is no distinction made between "ancestral property" and "self acquired property".

CJI Chandrachud said that there is no doubt that a child from an invalid marriage has right in the self-acquired property of the parent and there was no issue about that. "The vexed issue is about ancestral property", CJI said.

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.

Further, the appellant's side had also argued that the matter concerned children who were actually considered as legitimate before the enactment of the Hindu Marriage Act in 1955 as prior to 1955, bigamy was not an offence.

Background