Status of illegitimate children vis-à-vis ancestral property.

Status of illegitimate children vis-à-vis ancestral property. 

Section 16 of the Hindu Marriage Act as amended in 1976 reads as hereunder. (Relevant portion highlighted) 

Legitimacy of children of void and voidable marriages.—

(1) Notwithstanding that a marriage marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. 

(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. 

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the 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.

The judicial interpretations from the Supreme Court on this aspect are as hereunder:

1. Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt) v. K. Devi, (1996) 4 SCC 76. Justice Kuldip Singh and Justice S. Saghir Ahmad. https://main.sci.gov.in/jonew/judis/15631.pdf 

82. In view of the legal fiction contained in Section 16, 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.

2. Jinia Keotin v. Kumar Sitaram Manjhi, (2003) 1 SCC 730 . Justice Doraiswamy Raju and Justice Shivaraj V Patil. https://main.sci.gov.in/jonew/judis/18681.pdf  

4……The Hindu Marriage Act underwent important changes by virtue of the Marriage Laws (Amendment) Act, 1976, which came into force with effect from 27-5-1976. Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If the marriage itself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardizing the children born of the parties to such marriage. Polygamy, which was permissible and widely prevalent among the Hindus in the past and considered to have evil effects on society, came to be put an end to by the mandate of Parliament in enacting the Hindu Marriage Act, 1955. The legitimate status of the children which depended very much upon the marriage between their parents being valid or void, thus turned on the act of the parents over which the innocent child had no hold or control. But, for no fault of it, the innocent baby had to suffer a permanent setback in life and in the eyes of society by being treated as illegitimate. A laudable and noble act of the legislature indeed in enacting Section 16 to put an end to a great social evil. At the same time, Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children is concerned, to the properties of the parents only.

5. So far as Section 16 of the Act is concerned, though it was enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provides in sub-section (3) by engrafting a provision with a non obstante clause stipulating specifically that nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage, which is null and void or which is annulled by a decree of nullity under Section 12, “any rights in or to the property of any person, other than the parents, in any case where, but for the 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”. In the light of such an express mandate of the legislature itself, there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in sub-section (3) of Section 16 of the Act but also would amount to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself. Consequently, we are unable to countenance the submissions on behalf of the appellants. The view taken by the courts below cannot be considered to suffer from any serious infirmity to call for our interference, in this appeal.

3. Neelamma v. Sarojamma, (2006) 9 SCC 612. Justice Ashok Bhan and Justice Lokeshwar Singh Panta. 

3. The High Court relying upon the judgment of a Single Judge of the Andhra Pradesh High Court in G. Nirmalamma v. G. Seethapathi AIR 2001 AP 104  has held that under Section 16(3) of the Hindu Marriage Act, 1955 (for short “the Act”), the illegitimate child would be entitled to succeed/claim a share in the joint Hindu family property as well. This view of the High Court is contrary to the law laid down by this Court in Jinia Keotin v. Kumar Sitaram Manjhi(2003) 1 SCC 730. In the said case this Court, interpreting the same provisions of the Act, has come to the conclusion that an illegitimate child cannot succeed/claim a share in the joint Hindu family property. Such illegitimate child would only be entitled to a share in the self-acquired property of the parents. 

4.Bharatha Matha v. R. Vijaya Renganathan, (2010) 11 SCC 483. Justice Dr.B.S.Chauhan and Justice Swatanter Kumar. https://main.sci.gov.in/jonew/judis/36394.pdf 

29. Thus, it is evident that in such a fact situation, a child born of void or voidable marriage is not entitled to claim inheritance in ancestral coparcenary property but is entitled only to claim a share in self-acquired properties, if any.

5. Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1. Justice G.S. Singhvi and Justice A.K.Ganguly. https://main.sci.gov.in/jonew/judis/37947.pdf

39. We are constrained to differ from the interpretation of Section 16(3) rendered by this Court in Jinia Keotin and, thereafter, in Neelamma and Bharatha Matha in view of the constitutional values enshrined in the Preamble of our Constitution which focuses on the concept of equality of status and opportunity and also on individual dignity. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents. A child born in such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage. This is the crux of the amendment in Section 16(3). However, some limitation on the property rights of such children is still there in the sense their right is confined to the property of their parents. Such rights cannot be further restricted in view of the pre-existing common law view discussed above.

40. It is well known that this Court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone. Such legislation must be given a purposive interpretation to further and not to frustrate the eminently desirable social purpose of removing the stigma on such children. In doing so, the Court must have regard to the equity of the statute and the principles voiced under Part IV of the Constitution, namely, the directive principles of State policy. In our view this flows from the mandate of Article 37 which provides that it is the duty of the State to apply the principles enshrined in Chapter IV in making laws. It is no longer in dispute that today the State would include the higher judiciary in this country.

41. Considering Article 37 in the context of the duty of the judiciary, Mathew, J. in Kesavananda Bharati v. State of Kerala(1973) 4 SCC 225 held: (SCC p. 878, para 1704)

“1704. … I can see no incongruity in holding, when Article 37 says in its latter part ‘it shall be the duty of the State to apply these principles in making laws’, that judicial process is ‘State action’ and that the judiciary is bound to apply the directive principles in making its judgment.”

42. Going by this principle, we are of the opinion that Article 39(f) must be kept in mind by the Court while interpreting the provision of Section 16(3) of the Hindu Marriage Act. 

43. Apart from Article 39(f), Article 300-A also comes into play while interpreting the concept of property rights. Article 300-A is as follows:

44. The right to property is no longer fundamental but it is a constitutional right and Article 300-A contains a guarantee against deprivation of property right save by the authority of law.

45. In the instant case, Section 16(3) as amended, does not impose any restriction on the property right of such children except limiting it to the property of their parents. Therefore, such children will have a right to whatever becomes the property of their parents whether self-acquired or ancestral.

46. For the reasons discussed above, we are constrained to take a view different from the one taken by this Court in Jinia Keotin, Neelamma and Bharatha Matha on Section 16(3) of the Act.

47. We are, therefore, of the opinion that the matter should be reconsidered by a larger Bench and for that purpose the records of the case be placed before the Hon’ble the Chief Justice of India for constitution of a larger Bench.

Note: The issue as to whether illegitimate children are entitled to share in ancestral property is referred to a larger bench of the Supreme Court. However till the larger bench differs with earlier views, the legal position continues which is, the illegitimate children do not have right in ancestral properties. They are entitled to share only in self-acquired properties after the death of their parents.

Links to above Judgments:

1. Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt) v. K. Devi, (1996) 4 SCC 76. https://main.sci.gov.in/jonew/judis/15631.pdf

2. Jinia Keotin v. Kumar Sitaram Manjhi, (2003) 1 SCC 730. https://main.sci.gov.in/jonew/judis/18681.pdf 

3. Neelamma v. Sarojamma, (2006) 9 SCC 612. (Could not find on SC website.)

4. Bharatha Matha v. R. Vijaya Renganathan, (2010) 11 SCC 483. https://main.sci.gov.in/jonew/judis/36394.pdf 

5. Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1. https://main.sci.gov.in/jonew/judis/37947.pdf