A distinction between void and voidable marriages has been provided under the Hindu Marriage Act, of 1955. Section 16 of the Act, provides for the legitimacy and the rights of the property of children born to these marriages.
Valid Marriage-
As per the Hindu Marriage Act, 1954, a valid marriage is solemnized in accordance with the conditions provided under Sections 5 and 7 of the Hindu Marriage Act, 1955. If the conditions provided under the Section 5 are not met, the marriage would be either void or voidable as provided under Sections 11 and 12 respectively.
Void Marriages [Section 11 of the HMA]
Marriages that are unlawful or invalid since their very inception.
As a void marriage is not a marriage, no decree of nullity would be required.
Either of the parties to the marriage could file for the decree of nullity.
Voidable Marriages-
Unlike a void marriage, it is important to have a judicial declaration issued for a voidable marriage to be called a void marriage. The grounds which are provided under Section 12 of the Hindu Marriage Act, for a marriage to be voidable marriage are-
Impotence- it could be physical or mental impotence. If the respondent shows persistent and invincible repugnancy to consummate the marriage, it could be called impotency.
Unsoundness of mind of the party- if the respondent has been suffering from a mental illness.
In case the consent of the applicant for the marriage was obtained by fraud or force
In situations where the respondent was pregnant at the time of marriage by some other person, while the petitioner was not aware of it.
Legal rights of the children born out of a void or voidable marriage-
Before the amendment-
At the time of the enactment of the Hindu Marriage Act, of 1955, the position of the legitimacy of the children of a voidable marriage was provided under the Matrimonial Causes Act, of 1950, which provided that the children born out of an annulled voidable marriage as well as void marriage would be conferred as legitimate.
Post the Amendment of Marriage Laws (Amendment ) Act, 1976-
As could be understood by the language of the Act mentioned above, legitimate status was provided to children born of declared void marriages only.
Post the Amendment of 1976, Section 16 of the Hindu Marriage Act, 1955 provides that, the child of an annulled voidable marriage as well as the child of a void marriage, i.e. irrespective of the fact if the marriage of the parents was declared void or not, would be legitimate.
Thus, Section 16 of the Act, provides legitimate status to a child born out of a void or voidable marriage. Prior to the amendment of 1976, children born out of void marriages were legitimate only if the decree of nullity was granted as provided under Section 11 of the Act.
At present, as provided under Section 16 of the Act, the legitimate position of children born out of a void or voidable marriage is-
Children born out of an annulled marriage would be legitimate in the same way as children born of a valid marriage are.
Children born out of a voidable marriage (declared so or not) as well as annulled voidable marriage would be legitimate, however, these children would only have the right to inherit the property of their parents.
If the marriage is void or voidable under as per grounds other than the ones mentioned under sections 11 and 12 of the Act, the children born out of such marriage would be illegitimate. For instance, if the marriage ceremonies were not done in accordance to the provisions allowed by the law resulting in the marriage being void, the children born out of such marriage would be illegitimate.
It was held in the case of Sujata v Jigar (1992, AP), children as mentioned above could inherit the separate property of their father as provided under Section 8 of the Hindu Succession Act, 1956, however, they would not be able to lay claim on the interest of the father in the ancestral property. Hence, the child born out of such marriage would have no right over the Joint Hindu family property.
However, a recent case related to a similar subject matter was referred to Chief Justice S.H. Kapadia to refer it to a higher Bench, as the deciding bench of Justices G.S.Singhvi and A.K.Ganguly differed with the earlier judgments related to Section 16(3) of the HMA that “the children born out of such marriages are entitled to the property of their parents and not of any other relation.
The Bench observed that the relationship between the parents may not be sanctioned by law, however, the birth of the child should be viewed independently of the relationship between the parents. A child so born is innocent and should be entitled to all the rights, which are provided to other children born in a valid marriage, which is the crux of Section 16(3), as Section 16(1) and (2) expressly declared that the children so born should be legitimate.
Conclusion
In case you are facing a similar issue, it is advised that you talk to a lawyer or seek free legal advice online from an experienced advocate. Lead India offers you a team of experienced advocates who have been successfully dealing with issues related to criminal or civil issues including family law.
We also offer assistance to couples who are interested in court marriages. Thus if you wish to contact Court Marriage Lawyers in Faridabad, Court Marriage Lawyers in Ghaziabad, Court Marriage Lawyers in Delhi, or in your own city, you may contact us.
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