Child From Void/Voidable Marriage Cannot Be Treated As Coparcener By Birth In Mitakshara Hindu Undivided Family : Supreme Court

The Supreme Court, while holding that a child born from a void or a voidable marriage is entitled to parents' share in a Hindu Undivided Family(HUF) governed by Mitakshara law, clarified that such a child cannot be treated as coparcener by birth in the HUF.

"If a person born from a void or voidable marriage to whom legitimacy is conferred by sub-sections (1) or (2) of Section 16 [of the Hindu Marriage Act 1955] were to have an interest by birth in a Hindu Undivided Family governed by Mitakshara law, this would certainly affect the rights of others apart from the parents of the child.", the bench comprising  CJI DY Chandrachud, Justices JB Pardiwala and Manoj Misra observed.

The court observed that holding otherwise would certainly affect the rights of others apart from the parents of the child.

The bench was answering the reference in Revanasiddappa v. Mallikarjun where the issue referred read as follows: Whether a child who is conferred with legislative legitimacy under Section 16(1) or 16(2) is, by reason of Section 16(3), entitled to the ancestral/coparcenary property of the parents or is the child merely entitled to the self-earned/separate property of the parents. One question that needed answer was whether the legislative intent is to confer legitimacy on a child covered by Section 16 in a manner that makes them coparceners, and thus entitled to initiate or get a share in the partition - actual or notional?

One of the arguments raised was that the legislative intent behind Section 16 of the Hindu Marriage Act is to treat all legitimate children equally, as coparceners. Once the children born out of void and voidable marriages have been treated as legitimate, there can be no discrimination between them and the other legitimate children born out of lawful marriages, it was argued. The other side contended that there is a difference between conferring legitimacy on a child and elevating them to the status of a coparcener.

The court noted that the present Section 6(3) of the Hindu Succession Act 1956  provides for devolution by testamentary or intestate succession under the Act and not by survivorship. Section 6 however, continues to recognize the existence of Mitakshara Hindu Joint families.  As an answer to the above argument, the court observed thus:

"The amendments have built upon the structure of the HUF and calibrated it to facilitate the legislative intent of bringing about gender equality within the fold of the institution. But the legislature has not stipulated that a child whose legitimacy is protected by sub-section (1) or sub-section (2) of Section 16 of the HMA 1955, would become a coparcener by birth.

On the other hand, the express language used in sub-section (3) of Section 16 of the HMA 1955 is that the conferment of legitimacy shall not be construed as conferring any rights in or to the property of any person other than the parents. As we have already noted earlier, the very concept of a coparcener postulates the acquisition of an interest by birth. If a person born from a void or voidable marriage to whom legitimacy is conferred by sub-sections (1) or (2) of Section 16 were to have an interest by birth in a Hindu Undivided Family governed by Mitakshara law, this would certainly affect the rights of others apart from the parents of the child.

Holding that the consequence of legitimacy under sub-sections (1) or (2) of Section 16 is to place such an individual on an equal footing as a coparcener in the coparcenary would be contrary to the plain intendment of sub-section (3) of Section 16 of the HMA 1955 which recognises rights to or in the property only of the parents. In fact, the use of language in the negative by Section 16(3) places the position beyond the pale of doubt. We would therefore have to hold that when an individual falls within the protective ambit of sub-section (1) or sub-section (2) of Section 16, they would be entitled to rights in or to the absolute property of the parents and no other person"

Detailed report about the judgment can be read here.

Revanasiddappa v. Mallikarjun | 2023 LiveLaw (SC)  | 2023 INSC 783

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