Recently the Bench of Justice Sanjay Kishan Kaul and Harishikesh
Roy has noticed that the matter shall be refed to a larger Bench in the case of
Bharatha Matha v R Vijay Renganathan, 2010 and Jinia Keotin v Kumar
Sitaram, 2003 the SC held that the children born out of the void marriage
are not entitled to have right in the ancestral coparcenary property and were
only entitled to claim right on the self-acquired property of their father.
Also, in the case of Revanasiddappa v Mallikarjun, 2011
the SC had a different view and held that the child has the right of whatever
becomes the property of his father, whether ancestral or self-acquired property.
In this case, the SC was of the view that the prohibition under section 16(3)
does not apply to parental property. And as per section 16(1), any such child will
not be discriminated against other legitimate child and such child will have
all the rights in the property of the parents. With changing time and society,
there is also a change in the social norm of legitimate child and what was considered
to be illegitimate in the past may be legitimate today. The concept of legitimacy
stems from the social consensus, in the shaping of which various social groups
play a vital role. The primacy of the dominant group changes with the changing
socio-economic scenario and the consequential vicissitudes of human relationships.
The law also takes its time to change through the process of amendments. Hence the
changing society cannot remain static. Also considering the Hindu Law primarily,
one would see that it never remained static and kept evolving from time to time
in order to meet the changes in the social structure.
The provision that shall be important for this matter are as
follow of Hindu Marriage Act, 1955:
1. Section 5 [condition for a Hindu marriage]: a
marriage becomes solemnized only if the following conditions are fulfilled:
i. Neither party has a living spouse at the time of
marriage
ii. Either party at the time of marriage were not
incapable of giving valid consent. Not be suffering from an unsound mind or any
mental disorder.
iii. The bride has completed the age of 18 years and
the groom has completed the age of 21 years.
iv. Parties are not within the degree of prohibition
relationship unless custom or usage permit
v. The parties
are not sapinda of each other unless any custom or usage permit
2. Section 11 [void marriage]: a marriage becomes
null and void if it contravenes sub-clause (i), (iv) and (v) of section 5.
3. Section 12 [voidable marriage]: if the marriage
is not consummated owing to the importance of any partner. If marriage is in
contravention to sub-clause (ii) of section 5 or even consent if acquired by
force or fraud. If the respondent was pregnant at the time of marriage. But if
the petitioner was living with full consent with the respondent after knowing the
fraud or the force cease to operate, then marriage would not be voidable.
4. Section 16 [Legitimacy of children of void and
voidable marriage]: if the marriage had been legitimate then any child of such
marriage shall also be legitimate as well. In the case of voidable marriage,
any child born before the decree of nullity is passed by the court would consider
to be legitimate. And notwithstanding anything said above, any child out of
null and void marriage or after the decree u/s 12 is passed shall be considered
to be an illegitimate child and will have no right in the property of any
person, other than the parents.
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