The apex court ruled that children born out from void or voidable marriages (which is neither legitimate nor sanctioned by society) can claim the right in their parent’s ancestral property in joint Hindu family. The bench of Chief Justice of India (CJI) D.Y. Chandrachud along with Justices JB Pardiwala and Manoj Misra held that a child under section 16(1) and section 16(2) of Hindu Marriage Act, is legitimate kin who has right to property in his parent’s ancestral property under the provision of Hindu Succession Act.
The apex court reiterated that section 6 of the Hindu Succession Act, which says the devolution of interest in coparcenary property, further elaborated that a child by birth become a coparcener in his/her parent’s property of the joint Hindu family that is governed by Mitakshara law. Therefore, the apex court has opined that the provisions of Hindu Marriage Act must be harmonized with those of Hindu Succession Act to ensure that a child could not be debarred from his/her rights and get the right in the property of their parents under Art.16(1) and (2) of the Hindu Marriage Act.
Furtherance the hon’ble court made it clear that a child born from a void or voidable marriage (under section 11 and section 12 of the Hindu Marriage Act, 1955, respectively) does not ispo facto become a coparcener (meaning joint heir in Hindu law) in the Hindu Matakshara joint family. The fundamental principles which govern the Hindu Undivided family is that a coparcener holds a property in common with others. The birth of a person who is a coparcener leads to the acquisition of an interest in the coparcenary property. The shares are liable to increase with birth and decrease with death of a coparcener. The given verdict can be substantiated by the meaning of section 6(3) of the Hindu Marriage Act which talks about the devolution of the share of a hindu male coparcener in the property of a Hindu Undivided family governed by Mitakshara law upon the death take place not by survivorship but by testamentary or intestate succession.
Section 6(3) provides for devolution by testamentary or intestate succession under the act and not by survivorship.
The question before the Hon’ble Court is that whether the share of children born out of void or voidable marriages is limited only to the self-acquired property of their parents under section16(3) of the Hindu Marriage Act, states that nothing contained in clause (1) and (2) of section 16 shall be complied as conferring upon any child of a marriage which is null which is declared to be void u/s 12 of the act, any rights in property of any person other than the parents, such chil d would have been incapable of possessing or acquiring any such rights by the reason of his/her not being the legitimate child of his parents.
The court has ruled over its own judgement by saying that the meaning of ‘legitimacy’ changes with changing social norms therefore the law cannot be remained static given in 2010 in the case of Bharatha Matha and anr. v. R. Vijaya Renganathan & Ors., held that such children (born out of void or voidable marriage) were not entitled to claim inheritance of ancestral coparcenary property, only entitled to claim a share over the self-acquired property of their parents.
Hence, the court held that the very concept of coparcener postulates the acquisition of a property of an interest by birth. If a person born out of void or voidable marriage to whom legitimacy is conferred by section 16 (1) and (2) of the Hindu Marriage Act, such children can claim or recognize the rights in their parent’s self-acquired property only otherwise it will affect the rights of others apart from the parents.
Written by Aayushi Arun Satyadeo of Bharati Vidyapeeth University, New Law College, Pune. (Sem- IIIrd), an intern under Legal Vidya
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