Legitimacy of Children of Void and Voidable Marriages under the Hindu Marriage Act

It may be noted that S. 16 comes into play only if a marriage is proved to have taken place between a man and a woman, but which is otherwise null and void under S. 11. So, when there has been no marriage at all, S. 16 cannot be involved, and legitimacy cannot be conferred on any child. (Sudarshan Karir v. The State, A.I.R. 1988, Del. 368)

Following the above principles, the Madras High Court has reiterated that a child born out of a void marriage will share the father’s property equally with the other legitimate children. (Margabandhu v. Kothandarama, A.I.R. 1984, Mad. 270)

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The Kerala High Court has clarified that S. 16 applies to marriages that are void under S. 11 of the Act (which applies only to those marriages which are solemnized after the Act came into force). Therefore, children born of a second marriage which is void and which was solemnized prior to the Act are not entitled to be legitimised. (P.E. Kanapravan v. K. Devi, A.I.R. 1989, Ker. 279)

In the above case, it was also held that S. 16 is not violative of Article 14 of the Constitution.

However, an important exception is also made to the above rule. The effect of the exception is that what has been stated above does not confer upon any child of a marriage which is null and void, or which is annulled by a decree of a nullity, any rights in or to the property of any person, other than the parents, in any case where, but for passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

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