Legitimacy of Children Under Void/Voidable Marriage
Image Source: The Economic Times
The idea of a void marriage has its roots in early English law when ecclesiastical courts dealt with matrimonial matters. English laws had a few restrictions that, if broken, called into doubt the legitimacy of the marriage. These obstructions are divided into absolute and relative obstructions, which result in void and voidable marriages, respectively.
A void marriage is different from a marriage that is voidable under the Hindu Marriage Act of 1955. According to Section 16 of the Act, children of all null and voidable marriages are legitimate, but they only have the right to inherit their parents’ assets.
Conditions for a valid marriage
According to Hindu Law, a marriage is considered lawful if it satisfies all the requirements outlined in Sections 5 and 7 of the Hindu Marriage Act, 1955. The marriage would, however, become void under Section 11 or voidable under Section 12 if the prerequisites under Section 5 are not met. Sec. 5 of the Act states that
Hindu marriage requirements are as follows:
Any two Hindus can marry if the following conditions are met, in particular:
- At the moment of marriage, neither party has a spouse who is still alive;
- When the parties got married, neither of them:
- unable to give legal consent due to mental disability; or
- Despite being competent in giving informed consent, the person has a mental illness that prevents them from getting married having children; or
- has experienced repeated episodes of lunacy;
- At the time of the wedding, the bride was eighteen years old and the bridegroom had reached the age of twenty-one.
- The parties are not in a banned relationship unless their respective customs or usage allow for a marriage between them;
- Unless the custom or usage governing each of them permits a marriage between the two, the parties are not sapindas of one another.
Void Marriage
A marriage that was void from the beginning is one that was illegal or invalid. In Lila v. Laxmi (1968), it was decided that a decree of nullity is not required because a void marriage is not a marriage.
A petition for the nullity of marriage may only be submitted by one of the married parties. The Hindu Marriage Act of 1955 prohibits third parties from bringing void marriage petitions.
As per Section 11 of the Hindu Marriage Act, 1955, Any marriage performed after the effective date of this Act is void and may be declared as such by a decree of nullity on a petition filed by either party [against the other party] if it violates any of the terms outlined in clauses (i), (iv), and (v) of section 5.
Therefore, by this clause, the following constitute grounds for a null marriage:
- If any party is married when their spouse is still alive.
- Unless the parties’ custom forbids such a marriage, if the parties fall within the range of forbidden relationships.
- Unless their custom allows for such a marriage, the parties must be sapindas to one another.
Voidable Marriages
Until one of the parties to the marriage decides to annul it, a voidable marriage is lawful. Contrary to void marriages, a voidable marriage must be declared by a judge.
Grounds of voidable marriages
The grounds for a voidable marriage are outlined in Section 12 of The Hindu Marriage Act, 1955, along with some prerequisites for some of these justifications. The stated justifications apply to unions formed before and after the Act.
- Impotency: Impotence is the result of the respondent’s persistent and unbeatable repugnance toward the act of consummation.
- Mental capacity of the parties: This implies that the respondent cannot offer legal consent because of a mental condition, which means that the marriage violates Section 5(ii) of the Hindu Marriage Act.
- Consent obtained by force or fraud: The marriage is voidable if the petitioner’s consent or the guardian’s permission, as applicable, was gained by deceit or coercion.
- The petition must be filed within a year of the fraud being discovered or the force ceasing to be used, and
- It must be proven that the petitioner did not live with the other party as husband or wife with full consent after the fraud was discovered or the force was stopped
- Pre-marriage pregnancy: The respondent must be pregnant at the time of the marriage to someone other than the petitioner for this cause to apply. Other prerequisites include:
- At the time of the marriage, the petitioner was unaware that the respondent was pregnant. (This was decided in the 1992 case C.S. Rangabhattar v. Choodamani.)
- In the case of pre-Act marriages, the petition must be filed within a year of the marriage date; in the case of post-Act marriages, the petition must be filed within one year of the entry into force of the law.
- After the petitioner learned of the respondent’s pregnancy, there was no marital activity done with his or her permission.
Children of Void/ Voidable Marriages
We embraced the position of offspring of voidable marriages provided under the Matrimonial Causes Act, 1950 (English Law), which provided the status of legitimacy to the children of annulled voidable marriages, at the time the Hindu Marriage Act, 1955, was enacted. Additionally, we granted the status of legitimacy to the offspring of void marriages as well.
After Amendment
The Act’s wording gave rise to the notion that only marriages that had been ruled void gave their offspring the status of legitimacy. The Marriage (Amendment) Act 1976 changed that.
Due to this modification, Section 16 of the Hindu Marriage Act, 1955 now states that children of void marriages (whether or not they have been declared void) and children of annulled voidable marriages are legal offspring. This judgment was rendered in the 1996 case of Parayan Kandiyal v. K. Devi.
The children of void and annulled voidable marriages are given the status of legitimacy under Section 16 of the HMA, 1955. Before the 1976 amendment, a decree of nullity had to be issued in respect of a void marriage for the children to be considered legitimate under HMA, 1955. As stated in Section 16 of the Act, the current situation of offspring of invalid and voidable marriages is as follows.
Children from voidable marriages that haven’t been annulled are entitled to the same legal protections as children from valid marriages.
Children of void marriages (whether or not they have been declared void) and voidable marriages that have been annulled will be considered legitimate, although they will only inherit their parents and no one else’s property.
The Supreme Court ruled in Sujata v. Jagar (1992) that children born to a marriage that is unlawful or voidable under any other legal provision than Sections 11 and 12 of the Act are considered to be illegitimate.
The restrictions of Section 16 would not be applicable, for instance, if a marriage was nullified due to the failure to complete the required rituals.
This was upheld in several famous trials, including:
According to Section 8 of the Hindu Succession Act of 1956, such children can inherit the separate property of their father, but they are not eligible to inherit the father’s coparcenary interest. A child of such a marriage is not entitled to inherit the property of a Hindu joint family at birth.
Recent Judgement
According to the Hindu Succession law, children born into “void or voidable” marriages are genuine and entitled to their parents’ assets, the Supreme Court ruled on Friday.
The Supreme Court’s ruling was based on a 2011 petition that asked if, according to Hindu law, children born outside of marriage were entitled to a portion of their parents’ ancestors’ property. A bench led by Chief Justice D Y Chandrachud stated in the ruling, “We have now formulated conclusion, 1. A child of a marriage that is null and void is statutorily conferred with legitimacy, 2. According to Section 16(2) of the Hindu Marriage Act, if a valid marriage is annulled, a child born before the decree is deemed legitimate.”
“Daughters are given similarly equal rights…” it said.
In addition, the Supreme Court resolved to consider whether Section 16(3) of the Hindu Marriage Act restricts such children’s share to just their parents’ self-acquired property.
A two-judge bench of the Supreme Court forwarded these inquiries to a bigger bench on March 31, 2011.
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