Children from void marriages entitled to parents’ share in property, says SC

Source: The post is based on the article “Children from void marriages entitled to parents’ share in property, says SC”  published in The Hindu on 2nd September 2023

What is the News?

The Supreme Court held that a child born of a void or voidable marriage can inherit their parents’ share in a joint Hindu family property governed by the Mitakshara law.

However, the court clarified that such a child would not be entitled to rights in or to the property of any other person in the family.

What is a Voidable Marriage?

A voidable marriage is one that is made invalid by the husband or wife through a decree. A void marriage is invalid at its very inception.

What is Mitakshara law?

There are mainly two schools in Hindu law, the Mitakshara & the Dayabhaga which concern the law of inheritance.

Mitakshara school is practiced in all of India except in the state of West Bengal and Assam.In this school of inheritance, property is inherited by the successors (coparceners) only if they were born in the family of the property owners.

Dayabhaga is mainly practiced in Assam & West Bengal.In this school of inheritance, the property goes to the successors (coparceners) only when the property owner is dead.

Under the Dayabhaga, a partition of the coparcenary property can be imposed by any adult coparcener whether male or female.

But under the Mitakshara, as it existed before the 2005 amendment of the Hindu Succession Act, a female could not at all be a coparcener and was therefore not entitled to partition.But after the amendment, a woman may also be a coparcener today.

What did the Supreme Court say on inheritance for children born from void marriages?

Section 16 of the Hindu Marriage Act grants legitimacy to children born from void or voidable marriages.

The court said that the intent of granting legitimacy to such children in the Hindu Marriage Act should also be reflected in the Hindu Succession Act, which governs inheritance.

This is because children born from void or voidable marriages come within the ambit of “legitimate kinship” and cannot be regarded as illegitimate by the Hindu Succession Act when it comes to inheritance.

The court also noted that after the enactment of the Hindu Succession (Amendment) Act, 2005, the share of a deceased person in a joint Hindu family governed by Mitakashara law can be devolved to his heirs by testamentary or intestate succession.

Prior to the amendment, the devolution was only through survivorship.Besides, the amendment gave equal rights of succession to women as well as men.