[Hindu Marriage Act] Children Born Out Of Void Marriage Also Have Right To Property Of Parents: Kerala High Court

Justice Harisankar V. Menon relying upon the Apex Court decision in Revanasiddappa v. Mallikarjun (2023) and amended Section 16 of the Hindu Marriage Act (legitimacy of children of void and voidable marriages) observed that children born out of a void marriage will also have right to the property of parents.

“This Court also notices the judgment of the Apex Court in Revanasiddappa v. Mallikarjun [2023 (5) KHC 486] relied on by the learned counsel for the 4th respondent wherein with reference to the amended provisions of Section 16 of the Act, the court has held that the children born out of a void marriage will also have rights to the property of the parents. Therefore, by virtue of the amended provisions under Section 16 of the Act referred to above, the three children born out of the marriage of C.Sreenivasan with the 4th respondent herein are also legitimate.”

Background

The petitioner married C. Sreenivasan as per Hindu customs in the year 1983 and they have a daughter born in the wedlock. He worked as an Assistant Salesman in Kerala State Civil Supplies Corporation.

During the subsistence of the first marriage, he entered into a second marriage with another woman in 1986. Subsequently, he obtained an ex parte divorce from petitioner which was later set aside by the Family Court. Both he and his second wife embraced Islam, and they got married as per Islamic customs. He had three children from the second marriage.

The petitioner's husband died in the year 2015 and the Corporation denied her request for terminal/pension benefits due to the disputes over his legal heirs. Meanwhile, the woman who did the second marriage with the deceased and her children obtained legal heirship certificate.

The petitioner has thus approached the High Court with a writ petition seeking for declaration that she, her daughter and her mother are the legal heirs of the deceased. Petitioner also seeks to quash the legal heirship certificate issued to the second wife and requests that the Corporation releases the terminal and pension benefits of her late husband.

The petitioner contended that the deceased's religion change will not will not dissolve the Hindu marriage entered into. It was argued that second marriage of a Hindu husband after conversion to Islam without dissolution of first marriage is invalid and void. It was also stated that conversion was done to perform second marriage and to deny the petitioner legal heir benefits.

Findings

The Court relying upon Apex Court decisions in Sarla Mudgal v. Union of India (1995), Lily Thomas v. Union of India (2000) stated that, “ The long and short of the above judgments is that if a Hindu who had solemnised a marriage under the Act with a Hindu female, cannot bring to an end the marital ties with the Hindu wife by mere conversion to another religion, so long as the earlier marriage is subsisting. There cannot be a reference to Personal Laws for that matter.”

The Court further noted that the second marriage was entered into by the parties in 1986, whereas they embraced Islam and entered into legal marriage as per Muslim laws only in 1994. The Court thus stated that the second marriage was entered into without dissolution of the first marriage.

The Court found that even though the second marriage was declared as void marriage, he had entered into the second marriage and the parties lived together as husband and wife and they had three children also. It thus stated that the three children born out of that marriage are also entitled to terminal benefits of the deceased.

Referring to the amendments brought in Section 16 of the Hindu Marriage Act from1976, the Court noted that the legislature has legitimised the rights of children born out of void marriage or before the dissolution of the first marriage. Court said, “The Apex Court has found that the above amendments were brought in, so as to bring social reforms, conferment of social status of legitimacy on a group of innocent children, etc. in the judgment of the Apex Court in Parayankandiyal Eravathkanapravan Kalliani Amma v. Devi [(1996) 4 SCC 76].”

The Court also stated that granting legal heirship certificate to the petitioner and her daughter would not take away the rights of the other three children born out of the deceased's second marriage.

As such, the Court directed granting the pension/terminal benefits to the petitioner, her daughter, mother-in-law and the three children born out of the second marriage.

Counsel for Petitioner: Advocates P.S.Sreedharan Pillai, Arjun Sreedhar, Arun Krishna Dhan, T.K.Sandeep

Counsel for Respondents: Standing Counsel Paulochan Antony P, Advocates P.Samsudin, K.C.Antony Mathew, Anju Cletus, Jithin Lukose, M.S.Mohammed Ansary, M.Anuroop, Senior Government Pleader Justin Jacob

Case Number: W.P.(C) No.38719 of 2016

Case Title: Smt Anitha T v Kerala State Civil Supplies Corporation Limited

Citation: 2024 LiveLaw (Ker) 592

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