Legitimacy of a Child in Void and Voidable Marriages:

Hindu Law Perspective

There are no illegitimate children - only illegitimate parents. - Leon R. Yankwich

According to the Oxford Dictionary1, the word legitimate means something that is allowed and
acceptable according to the law. It also gives another meaning to the word legitimate, as a child
born when its parents are legally married to each other. The legitimacy of any child is considered
as an important basis for evaluating his status and existence in the society. The basic rule that is
followed and considered by any lay man is that a legitimate child is born out of a lawful
marriage. An Illegitimate Child is one who has the certainty of his/her mother but no certainty of
his/her father.2
But when we come to the practicality of the subject matter then we realize that there are some
other people living around that stands across the table. There pops a major question that asks
each one of us that how a person should be determined as a legitimate or an illegitimate person.
This brings us to another question as to what is and what should be the status of a child when the
marriage between his/her parents is considered as void or voidable by the law. And in this
manner there is a thread of questions that conjointly questions the status of an illegitimate child.
The answer of these questions majorly effects the position of the child in not only the religious
matters but also in the economical matters of his so called family. An illegitimate child is never
considered as a part of the society and he is always looked upon by the society members.
The legitimacy of child is included under the Section 16 of the Hindu Marriage Act, 1955 which
contains all the provision related to legitimacy of child under the heading of legitimacy of child
in void and voidable marriages. But it is important to first analyze the terms void and voidable.
Void is something which is null and completely without legal force or binding effect. Void
1 8th edition
2 Right Of Maintenance To An Illegitimate Child: A Brief Review Of Indian Law; Avishek
Pradhan

marriages are those marriages which are completely void from its inception. According to section
11 of the same act, such a marriage is null and void and a decree of court can be obtained
through a petition that can be filed by either of the party on the grounds specified in clauses (i),
(iv) and (v) of section 5 viz. when (a) either party has a spouse living at the time of marriage; or
(b) parties are within prohibited relationship; or c) parties are sapindas of each other. No
consequences of marriage such as right to property, right to maintenance, etc. arises from such
marriage. Voidable is something which is not absolutely void, but may be avoided at the option
of one of the parties. According to Section 12 of the act, void marriages are those marriages that
can be annulled by a decree of court by an aggrieved party on the grounds of (a) non
consummation of marriage due to impotence of the opposite party; or (b) the marriage is in
contravention to clause (ii)3 of section 5 of the act; or (iii) the consent of the aggrieved party is
obtained by fraud or force; or (iv) if the opposite party was pregnant by some person other than
the aggrieved party. Such a marriage is fully valid unless declared void by the court and a decree
of court is necessary unlike void marriage to prove such marriages void. Such a marriage
remains valid unless avoided and hence the consequences of marriage also flow until it is
avoided.
The major objective of Section 16 of the Hindu Marriage Act is to bestow the legitimacy on the
children borne out of a void and voidable marriage. The empirical part of Section 16 contains
that even a child who is born out of a void or a voidable marriage is considered as a legitimate
child of his/her parents but section 16 (3) takes away some of the rights from a child who is born
out of a void or a voidable marriage. this part of the section restricts the illegitimate child from
acquiring a share in the property of the ancestors of his father i.e. the ancestral property of his
parents. An illegitimate child can only take a share from his parents property.
In the case of Sujata v. Krishna Prasad the Supreme Court of India observed; that the child born
out of a void and voidable wedlock is considered as legitimate under Section 16 of the Hindu
Marriage Act. But section 16(3) of the same act restricts the child to have a share in the property
except of his parents and therefore, the legitimatized son cannot get a share in the property which
3The grounds mentioned under clause (ii) are (a) is incapable of giving a valid consent of it in
consequence of unsoundness of mind; or (b) though capable of giving a valid consent has been suffering
from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of
children; or (c) has been subject to recurrent attacks of insanity or epilepsy.
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belongs to coparcenary of which his father is a member and that the legitimatised son should
succeed to the property on the death of his parents.
In Rameshwari Devi v. State of Bihar 4, the Supreme Court has observed that even when the
marriage between the parties may be in contravention with the Hindu Marriage Act, but under
Section 16 of the said Act children of void marriage are legitimate for the purpose of succession
to property of father.
There was an important amendment made in Section 16 of the Hindu Marriage Act, 1956, that
came out in 1976 which made it possible and conferred the right of inheritance to father's
property on children born out of void or voidable marriages. This was not the case before this
amendment. Earlier the child was not given any property rights in their parents property even.
In the case of Yagarlamudi Sujata v. Krishan Prasad5, the court held that the rights given to any
illegitimate child under this section are only subject to the property left by their parents and not
their ancestral property. Also in the case of Jinia Keotin v. Kumar Sitaram Manjhi the Supreme
Court of India held the same.
Then the question came about the situation in which the child was an offspring of the two people
who were in live in relationship. In this situation the Supreme Court of India clearly held that in
this situation the court will regard the couple as husband and wife and their child will be
regarded as legitimate. Earlier such child was regarded as illegitimate. However in the case of
Tulsa v. Durghatiya6, the Supreme Court held that children born out of a live in relationship will
no more be considered illegitimate and they will be given a status of a legitimate child of his /
her parents. In another case of S. P. S. Balasubramanyam v. Sruttayan7, the Supreme Court said that
if a man and woman are living in the same house and cohabiting for a number of years, then
according to Section 114 of the Evidence Act it will be presumed that they are husband and wife and
the children born to them will not be illegitimate but will be regarded as legitimate.
4 AIR 2000 SC 735
5 AIR 1992 SC 293
6 (2008) 4 SCC 520
7 AIR 1992 SC 756
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In the case of Madan Mohan Singh v. Rajni Kant8, the court gave the reasoning of this
consideration of a live in couple as living husband and wife. The court observed that if this
would not be the case then the live in couple would have the freedom to walk in or walk out of
the relationship thus leaving the child with a status of illegitimate and that would surely impact
him for a lifetime not only in his social life but also in the other streams of his life. In the case of
Smt. P.E.K. Kalliani Amma & Ors. Vs. K. Devi & Ors. AIR 1996 SC 1963, the Court held that
the illegitimate children, for all practical purposes, including succession to the properties of their
parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any
other relation on the basis of this rule, which in its operation, is limited to the properties of the
parents.9
Even the amendment that came in the year 1976 was not able to overrule the principle that the
mother has to claim the marriage or a long relationship and then only the child can inherit the
property of his father.
The court has extended the rights of the child to inherit his fathers property by giving him the
tag of a legitimate child even in the case when both the parents are in a live in relationship. But
the DNA test revealed that the person was not the real father of the son. This was done so that the
innocent child is saved from the fear and shattering future by being bastardized. On one hand the
court has been kind towards the guiltless child but on the other hand, in the case when the DNA
of the child and the father matched but the mother has already married to some other person, the
court is silent on the legitimacy of the child.
There is another situation under which the question of legitimacy of a child arises. The situation
is when a person marries another woman without giving divorce to his first wife. In this kind of a
situation the children of the first wife would be legitimate because they were born out of a legal
wedding. Also the children of the second wife will be considered as legitimate even when the
marriage with the second wife is void under Section 5(1) of the Hindu Marriage Act, and will
have the right in the property of his / her parents. This principle was laid down in the case of
Kamti Devi10 The basic jurisprudence behind it is that the naive child who is not responsible for

8 (2010) 9 SCC 209

9 Bharatha Matha & Anr v. R. Vijaya Renganathan & Ors. 2010 Stpl(Web) 406 Sc
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the void or voidable marriage of his / her parents or the live in relationship of his / her parents
should not suffer all through his life.
The other side of the story talks about the maintenance that is to be given to the illegitimate child
and to a legitimate child. Under section 125 of the Criminal Procedure Code, 1973 an
illegitimate child is also authorized to get maintenance from his / her father or mother if he/ she
is not able to maintain himself / herself. This section also does not make a distinction between a
married or unmarried child. The other condition laid down in this section is that if has attained
the age of majority, and by chance due to any physical or mental abnormality or injury is unable
to maintain himself / herself then in that case also he is eligible to get maintenance under this
section.11
Also Section 20 of the Hindu Adoptions and Maintenance Act, 1956 (HAMA) gives the similar
provision that makes even the illegible child eligible to get maintenance from his / her parents.
But this section restricts the maintenance only to the period for which the child is minor and is
not able to maintain himself / herself.
These laws and provision in the Indian legal system has helped the children to get a fair status of
legitimate and also helped them to get their share in the property or the maintenance. It has not
only worked to save the rights of the legitimate children only but has also tried to look for the
development of the illegitimate children and has worked to maintain them in order to give them a
better future.

Conclusion
The Indian society has treated the legitimacy of any child has sacred and has considered the
illegitimacy as a taboo. The illegitimate child has not only the world to look upon on but his so
called family members take him as a disgrace and his life turns out to be a nightmare for him.
But due to the legal advancements and the developing approach of the society, the outlook
towards the children whose parents are tied up in a void or voidable marriages has taken a new
10 2001 (5) SCC 311
11Right Of Maintenance To An Illegitimate Child: A Brief Review Of Indian Law; Avishek
Pradhan

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turn. Now the society does not blame the child and is becoming sensitive towards the lives and
future of these children. The different acts and provisions has helped these children to get a better
status in the society so that the people around does not question the existence of that child but
may look forward for him as a part of their society. The Indian legal system has tried to bring a
transformation in the thinking of the Indian social order and has climbed a number of ladders
towards a better understanding.

Bibliography
Books

Women and law by Anjani Kant

Universals master guide to judicial service examination
Supreme court on children by Vincent Walsh
Family law on divorce and judicial separation by Nassem Akhtar

Web Sources

infochangeindia.org
delhigovernment.nic.in
sanchitha.ikm.in
www.hsph.harward.edu

Articles

Illegitimate children entitled to ancestral property: Bench by J. Venkatesan

Right Of Maintenance To An Illegitimate Child: A Brief Review Of Indian Law by

Avishek Pradhan
Void And Voidable Marriages; The Modern Law Review; Volume 27; July 1964

Cases

Bharatha Matha & Anr. V. R. Vijaya Renganathan & Ors. 2010 STPL(Web) 406 SC

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