[Illegitimate Children's Entitlement To Share In Coparcenary Property] SC Awaits Answers To Larger Bench Reference Made In 2011 [Read Order]

Whether illegitimate children are entitled to a share in the coparcenary property? This legal issue is pending before a larger bench of the Supreme court since 2011.

Recently, the bench of Justices Sanjay Kishan Kaul and KM Joseph called upon the Registrar to look into this issue so that the papers can be placed before the Hon'ble Chief Justice of India for reference to a larger Bench.

Possibly many cases may be pending on this issue not only before this Court but even before the High Courts, the bench said.

Section 16 of the Hindu Marriage Act, 1955, provides that any child of a marriage which is null and void under section 11, who would have been legitimate if the marriage had been valid, shall be legitimate. However, Section 16(3) provides that it shall not be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents

Earlier Views Of SC

Earlier, in Bharatha Matha & another Vs. R. Vijaya Renganathan & others, AIR 2010 SC 2685 and Jinia Keotin Vs. Kumar Sitaram (2003) 1 SCC 730 , the Apex Court had taken a view that the children born out of the void marriage were not entitled to claim inheritance of the ancestral coparcenary property and were entitled to claim a share only in the self acquired property of their father.

In Jinia Keotin, the bench of Justices Doraiswamy Raju and Shivaraj V. Patil observed thus:

So far as Section 16 of the Act is concerned, though it was enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provide in Sub-section (3) by engrafting a provision with a non obstante clause stipulating specifically that nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage, which is null and void or which is annulled by a decree of nullity under Section 12, "any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents." In the light of such an express mandate of the legislature itself, there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in Sub-section (3) of Section 16 of the Act but also would attempt to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself. Consequently, we are unable to countenance the submissions on behalf of the appellants. The view taken by the courts below cannot be considered to suffer from any serious infirmity to call for our interference, in this appeal.

The bench of Justices B.S. Chauhan and Swatanter Kumar in Bharatha Matha, had observed thus: 

So far as Section 16 of the Act is concerned, though it was enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provide in Sub-section (3) by engrafting a provision with a non-obstante clause stipulating specifically that nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage, which is null and void or which is annulled by a decree of nullity under Section 12, `any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of this not being the legitimate child of his parents'. In the light of such an express mandate of the legislature itself there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in Sub-section (3) of Section 16 of the Act but also would attempt to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself.

2011 Reference To Larger Bench

In Revanasiddappa and Anr. vs. Mallikarjun And Ors. (2011) 11 SCC 1], a two judge bench of the Apex Court had opined that such children will have a right to whatever becomes the property of their parents whether self acquired or ancestral. Differing with the view taken by coordinate benches, the bench in Revanasiddappa had referred the matter to three judge bench. Section 16 provides that a child of a void or voidable marriage can only claim rights to the property of his parents, and no one else. Interpreting this provision, the bench of Justices GS Singhwi and AK Ganguly had observed thus:

"On a careful reading of Section 16 (3) of the Act we are of the view that the amended Section postulates that such children would not be entitled to any rights in the property of any person who is not his parent if he was not entitled to them, by virtue of his illegitimacy, before the passing of the amendment. However, the said prohibition does not apply to the property of his parents. Clauses (1) and (2) of Section 16 expressly declare that such children shall be legitimate. If they have been declared legitimate, then they cannot be discriminated against and they will be at par with other legitimate children, and be entitled to all the rights in the property of their parents, both self-acquired and ancestral. The prohibition contained in Section 16(3) will apply to such children with respect to property of any person other than their parents. With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. The concept of legitimacy stems from social consensus, in the shaping of which various social groups play a vital role. Very often a dominant group loses its primacy over other groups in view of ever changing socio- economic scenario and the consequential vicissitudes in human relationship. Law takes its own time to articulate such social changes through a process of amendment. That is why in a changing society law cannot afford to remain static. If one looks at the history of development of Hindu Law it will be clear that it was never static and has changed from time to time to meet the challenges of the changing social pattern in different time."

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