Fair share: Children born of invalid marriages are treated as legitimate

Court judgments have said they are entitled to rights in both self-acquired and ancestral properties of parents

The Supreme Court recently reserved its verdict on a plea filed in 2011 about whether children born of legally invalid marriages were entitled to a share in the ancestral property of their parents under Hindu law. The case, before a three-judge bench headed by Chief Justice of India D Y Chandrachud, is focused on an amended provision in the Hindu Marriage Act, Section 16(3). 

"The birth of a child in such a relationship has to be viewed independently of the relationship of the parents. A child born in such a relationship is innocent and is entitled to all the rights that are given to other children born in valid marriages. This is the crux of the amendment in Section 16(3)," said the bench in 2011.

Section 16(3) says that while the children attain legitimacy irrespective of the nature of the marriage they are born in, their rights concerning the parental property are limited to the property that belongs to or is owned by the parents. "Interestingly, the Act does not specify that the said property has to be necessarily created by the parents only. This begs the question: If the ancestral property devolves upon the parents and is legally owned by them, will that not also be owned by the child once the parents are deceased?” says Ekta Rai, an advocate at Delhi High Court. 

"If so, then the interpretation of the Hon’ble High Court that the property rights of the children born out of invalid marriages are limited to the property owned by the parents, including the ancestral property that is owned by the parents, is well within the ambit of the Act,” she says. 

Chandrachud on August 18 agreed with the findings of a division bench that in 2011 said children from void and voidable marriages had rights over the property, whether self-acquired or ancestral, of their parents. Rai says, "Now the Hon’ble Supreme Court has also ratified the said statement, and rightly so, as it is in tandem with the basic essence of the law, which is to protect the interests of children." 

There seems to be no legal doubt over the rights of children born out of relations not having legal sanction over the self-acquired properties of the parents. The interesting aspect is regarding the ancestral properties of the parents. "The interesting aspect is regarding the ancestral properties of the parents. Another fascinating aspect that needs to be put under the spotlight is one that came from the Hon’ble Bench itself – ‘when exactly does an ancestral property become the property of a parent of such a child'. We wait for the Supreme Court to clear the air," says Wasim Beg, partner, Luthra and Luthra Law Offices, India.

"A valid marriage is between parties and considered valid if it fulfils the conditions as provided under Section 5 of the Hindu Marriage Act 1955," says Siddharth Joshi, Senior Associate, SKV Law Offices. An invalid marriage lacks legal recognition for not meeting essential criteria. A void marriage is inherently unlawful from the start, like a union between close relatives.

 "A void marriage is inherently unlawful from the start, like a union between close relatives. A voidable marriage is legal but can be annulled if challenged, like a marriage where one party was forced,” says Aviral Kapoor, partner at Alagh & Kapoor Law Offices.

"Think of it like buying tickets: valid is a genuine ticket, invalid is a fake, void is buying for a cancelled show, and voidable is a ticket you can refund," says Kapoor.

A void or invalid marriage is not enforceable in law or is unlawful. A voidable marriage has to be annulled through a decree.

Inherited, ancestral property

The difference between inherited and ancestral property under Hindu law is the way it is descended from generation to generation. "The distinction between inherited and ancestral property is important because it affects the rights of the heirs. Inherited property is property that is descended from a parent to their child, regardless of whether the child is a male or female," says Abhinay Sharma, managing partner at ASL Partners.

Property inherited from four or more generations of male ancestors and is undivided, unsold, and unpartitioned is called ancestral property. 

"The amendment to the Hindu Succession Act of 1956, which was amended in 2005, granted daughters equal rights to ancestral property with sons, making them coparceners by birth, irrespective of when they were born or whether their father was alive at the time of the amendment," says Soayib Qureshi, partner, PSL Advocates & Solicitors.

Court judgements have said children born of legally invalid marriages are entitled to rights in both self-acquired and ancestral properties of their parents. Kapoor says, "However, they may not inherit from extended relatives. To identify your property rights as a child from an invalid marriage, maintain family property records, consult elders for ancestral property history, and seek legal counsel to clarify entitlements." 

Maintenance

Parents in void and voidable marriages have a legal responsibility to care for their children. Section 20 of the Hindu Adoption & Maintenance Act, 1956, addresses this obligation and extends it to cover children born of void, voidable, or illegitimate marriages. This legal framework obligates Hindu women to provide maintenance for both legitimate and illegitimate children. 

"To claim maintenance, a child is not required to reside with a parent if there is a valid reason for living separately. Even if the child lives with the mother, who maintains a separate household, while the father has remarried and established a separate household with his second partner, the child remains entitled to parental maintenance," says Qureshi.

The amount of maintenance that is payable to an illegitimate child is to be determined by the court hearing the case. The court may also order that the father or mother of an illegitimate child pay for the child's education, medical care, and other expenses. "If the father or mother of an illegitimate child fails to pay maintenance, the court may imprison them for a term of up to six months," says Sharma.

The right to maintenance is not absolute. 

Muslim and Christian laws

Under Muslim law, children of legally invalid marriages are not entitled to inherit property from their parents. Muslim law only recognises children born of a valid marriage as legitimate heirs. The Supreme Court has held that the Guardians and Wards Act, 1890, can prevail over personal law in keeping the interest of the minor child as the paramount consideration, according to Qureshi. 

An irregular marriage is a marriage that lacks some formality, like a marriage contracted without the requisite number of witnesses, etc. "Such marriages become lawful once the irregularity is removed and the status of children born out of such marriages is legal. As a logical conclusion, children born out of a void marriage have no rights to inherit, while those born from voidable marriages would be entitled to their share in the property," says Beg.

Christians come under the Indian Succession Act, 1926. "The rule under the law of succession is that the term ‘children’ means ‘legitimate children’. The term ‘Children’ under Christian Law does not include illegitimate children, and therefore, such children will not have the right to inheritance," says Beg.

Marriage and Succession lingo decoded

A valid marriage is legally recognised and fulfils the conditions required by Section 5 of the Hindu Marriage Act, 1955; an invalid marriage doesn’t meet those criteria
 

A void marriage is unlawful from the start, like a union between close relatives
 

A voidable marriage is legal but can be annulled through a decree if challenged (say, because one party was forced)
 

Inherited property is one that has descended from a parent to a child (male or female)
 

Property inherited from four or more generations of male ancestors, which is unpartitioned and unsold is ancestral property; once divided, it becomes inherited property