It is definitely most significant to note so clearly that in a most progressive, pertinent, path-breaking and pragmatic judgment titled Revanasiddappa and Anr vs Mallikarjun and Ors in Civil Appeal No 2844 of 2011 and cited in Neutral Citation No.: NC:2023:INSC:783 that was pronounced on September 1, 2023 in the exercise of its civil appellate jurisdiction has granted legitimacy and property rights to the children of void or voidable marriages in Hindu joint families. Truly speaking, this is exactly what forms the real cornerstone of this notable judgment. It also certainly merits mentioning here that the three-Judge Bench led by Hon’ble CJI Dhananjaya Yashwant Chandrachud and so also comprising of Hon’ble Mr JB Pardiwala and Hon’ble Mr Justice Manoj Misra have delivered a most significant judgment that has affirmed unequivocally that children born from such marriages are entitled to a share in the property of their deceased parents.
At the very outset, this refreshing, rational, remarkable and recent judgment authored by Hon’ble CJI Dhananjaya Yashwant Chandrachud and so also comprising of Hon’ble Mr JB Pardiwala and Hon’ble Mr Justice Manoj Misra sets the ball in motion by first and foremost putting forth in para 1 that, “A child born to parents whose marriage is null and void under Section 11 of the Hindu Marriage Act 19551 is declared to “be legitimate” by Section 16 (1) if a child “of such marriage… would have been legitimate if the marriage had been valid.” Likewise, where a decree of nullity has been granted under Section 12 in respect of a voidable marriage, a child “begotten or conceived before the decree is made” is “deemed to be their legitimate child” if such a child would have been the legitimate child of the parties to the marriage if the marriage had been dissolved instead of being annulled. Section 16(3) enunciates that a child of a marriage that is null or void or which is annulled by a decree of nullity shall not have “any rights in or to the property of any person, other than the parents” where but for the enactment of the legislation such a child would be incapable of possessing or acquiring any such rights “by reason of his not being the legitimate child of his parents”.”
Most significantly, the Bench then propounds in para 54 that, “We now formulate our conclusions in the following terms:
(i) In terms of sub-section (1) of Section 16, a child of a marriage which is null and void under Section 11 is statutorily conferred with legitimacy irrespective of whether (i) such a child is born before or after the commencement of Amending Act 1976;
(ii) a decree of nullity is granted in respect of that marriage under the Act and the marriage is held to be void otherwise than on a petition under the enactment; (ii) In terms of sub-section (2) of Section 16 where a voidable marriage has been annulled by a decree of nullity under Section 12, a child ‘begotten or conceived’ before the decree has been made, is deemed to be their legitimate child notwithstanding the decree, if the child would have been legitimate to the parties to the marriage if a decree of dissolution had been passed instead of a decree of nullity;
(iii) While conferring legitimacy in terms of sub-section (1) on a child born from a void marriage and under sub-section (2) to a child born from a voidable PART K marriage which has been annulled, the legislature has stipulated in subsection (3) of Section 16 that such a child will have rights to or in the property of the parents and not in the property of any other person;
(iv) While construing the provisions of Section 3(1)(j) of the HSA 1956 including the proviso, the legitimacy which is conferred by Section 16 of the HMA 1955 on a child born from a void or, as the case may be, voidable marriage has to be read into the provisions of the HSA 1956. In other words, a child who is legitimate under sub-section (1) or sub-section (2) of Section 16 of the HMA would, for the purposes of Section 3(1)(j) of the HSA 1956, fall within the ambit of the explanation ‘related by legitimate kinship’ and cannot be regarded as an ‘illegitimate child’ for the purposes of the proviso;
(v) Section 6 of the HSA 1956 continues to recognize the institution of a joint Hindu family governed by the Mitakshara law and the concepts of a coparcener, the acquisition of an interest as a coparcener by birth and rights in coparcenary property. By the substitution of Section 6, equal rights have been granted to daughters, in the same manner as sons as indicated by sub-section (1) of Section 6;
(vi) Section 6 of the HSA 1956 provides for the devolution of interest in coparcenary property. Prior to the substitution of Section 6 with effect from 9 September 2005 by the Amending Act of 2005, Section 6 stipulated the devolution of interest in a Mitakshara coparcenary property of a male Hindu by survivorship on the surviving members of the coparcenary. The exception PART K to devolution by survivorship was where the deceased had left surviving a female relative specified in Class I of the Schedule or a male relative in Class I claiming through a female relative, in which event the interest of the deceased in a Mitakshara coparcenary property would devolve by testamentary or intestate succession and not by survivorship. In terms of sub-section (3) of Section 6 as amended, on a Hindu dying after the commencement of the Amending Act of 2005 his interest in the property of a Joint Hindu family governed by the Mitakshara law will devolve by testamentary or intestate succession, as the case may be, under the enactment and not by survivorship. As a consequence of the substitution of Section 6, the rule of devolution by testamentary or intestate succession of the interest of a deceased Hindu in the property of a Joint Hindu family governed by Mitakshara law has been made the norm;
(vii) Section 8 of the HSA 1956 provides general rules of succession for the devolution of the property of a male Hindu dying intestate. Section 10 provides for the distribution of the property among heirs of Class I of the Schedule. Section 15 stipulates the general rules of succession in the case of female Hindus dying intestate. Section 16 provides for the order of succession and the distribution among heirs of a female Hindu;
(viii) While providing for the devolution of the interest of a Hindu in the property of a Joint Hindu family governed by Mitakshara law, dying after the commencement of the Amending Act of 2005 by testamentary or intestate succession, Section 6 (3) lays down a legal fiction namely that ‘the PART K coparcenary property shall be deemed to have been divided as if a partition had taken place’. According to the Explanation, the interest of a Hindu Mitakshara coparcener is deemed to be the share in the property that would have been allotted to him if a partition of the property has taken place immediately before his death irrespective of whether or not he is entitled to claim partition;
(ix) For the purpose of ascertaining the interest of a deceased Hindu Mitakshara coparcener, the law mandates the assumption of a state of affairs immediately prior to the death of the coparcener namely, a partition of the coparcenary property between the deceased and other members of the coparcenary. Once the share of the deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs including the children who have been conferred with legitimacy under Section 16 of the HMA 1955, will be entitled to their share in the property which would have been allotted to the deceased upon the notional partition, if it had taken place; and
(x) The provisions of the HSA 1956 have to be harmonized with the mandate in Section 16(3) of the HMA 1955 which indicates that a child who is conferred with legitimacy under sub-sections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents. The property of the parent, where the parent had an interest in the property of a Joint Hindu family governed under the Mitakshara law has to be ascertained in terms of the Explanation to sub-section (3), as interpreted above.”
For sake of clarity, the Bench clarifies in para 55 that, “Before concluding, it would be necessary to clarify that the reference to the three Judge Bench in this batch of cases is confined to Joint Hindu families governed by Mitakshara law. This Court has, therefore, dwelt on the interpretation of the provisions of the HSA 1956 in relation to Joint Hindu families of that class.”
It is worth noting that the Bench notes in para 58 that, “A large number of cases are likely to have remained pending before each High Court due to the pendency of this reference to the three judge Bench. The Registrar (Judicial) of this court is directed to immediately circulate a copy of the Judgment to the Registrars (Judicial) of all the High Courts who shall upon taking suitable directions from the Chief Justices on the administrative side ensure that all pending cases involving the issues decided here are listed for hearing and disposal before the assigned benches according to the rosters of work.”
Finally, the Bench then concludes by directing in para 60 that, “Pending application(s), if any, stand disposed of.”
All said and done, it is a very learned, landmark, logical, and laudable judgment which has ostensibly in no uncertain terms granted unequivocally the legitimacy and property rights to the children of void or voidable marriages in Hindu joint families. Of course, one has to concede that there can be just no gainsaying that all the persistent doubts, lingering questions and so many key queries that kept knocking our minds on the legitimacy of children of such children which have been hanging fire since last so many decades have been finally answered by this notable judgment of the Apex Court. There can be definitely just no denying or disputing it!
Sanjeev Sirohi
