Supreme Court: The 3-judge bench of Dr. DY Chandrachud, JB Pardiwala and Manoj Misra, JJ has settled the issue as to whether a child, born from a marriage that is null and void under the Hindu Marriage Act, 1955 (HMA), is entitled to ancestral/coparcenary property or only to the self-earned/separate property of the parents and has held that when an individual falls within the protective ambit of sub-section (1) or sub-section (2) of Section 16 of the HMA, they would be entitled to rights in or to the absolute property of the parents and no other person.
The Court explained that as the very concept of a coparcener postulates the acquisition of an interest by birth and if a person born from a void or voidable marriage to whom legitimacy is conferred by sub-sections (1) or (2) of Section 16 were to have an interest by birth in a Hindu Undivided Family governed by Mitakshara law, it would certainly affect the rights of others apart from the parents of the child. Placing such an individual on an equal footing as a coparcener in the coparcenary would be contrary to the plain intendment of sub-section (3) of Section 16 of the HMA 1955 which recognises rights to or in the property only of the parents.
The Court, however, it has dwelt on the interpretation of the provisions of the HSA 1956 in relation to Joint Hindu families governed by Mitakshara law only.
Legitimacy and Coparcenary
Section 16 (1) of the HMA declares a child born to parents whose marriage is null and void to “be legitimate” if a child “of such marriage… would have been legitimate if the marriage had been valid.” Similarly, Section 16(2) states that 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. However, Section 16(3) clarifies 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”.
While conferring legitimacy on children born from marriages that are void or voidable under sub-section (1) and sub-section (2) of Section 16 of the HMA 1955, Parliament circumscribed the nature of the rights in property that such a child can seek. Such an individual does not ipso facto become a coparcener in the Hindu Mitakshara Joint Family. The basic principle which governs such an HUF is that a coparcener holds a property in common with others. The birth of a person who is a coparcener leads to the acquisition of an interest in the coparcenary property. Shares are liable to increase with birth and reduce with the death of a coparcener.
Going into the legislative intent behind enactment of Section 16 of the HMA, the Court observed that the same was enacted as a result of the statutory prohibition on bigamy, considering that due to the nullity of such marriages in the eyes of the law, a child born to parents in a void marriage was deprived of the legitimacy that they enjoyed under the traditional Hindu law.
“If legitimacy were not to be conferred, this would affect, on the one hand, the rights of children born from void or voidable marriages: though the relationship of the parents may not be sanctioned by law, the child born from such marriage would have been stigmatized as “illegitimate”. Parliament stepped in to obviate such a consequence by enacting Section 16. At the same time, Parliament was cognizant of the fact that protecting a child born from a void or voidable marriage from the consequence of ‘illegitimacy’ and conferring legitimacy on such a child, would have consequences on the right to property of parents and persons other than the parents.”
Hence, in order to make sure that the conferment of the status of legitimacy does not affect the rights in or to the property of any other person other than the property of the parents, Section 16(3) represents a balancing act by the legislature when it stipulates that a child who is legitimate in terms of sub-sections (1) or (2) of Section 16 would have rights in or to the property only of the parents and not of any other person
It can, thus, be seen that the legislature has not stipulated that a child whose legitimacy is protected by sub-section (1) or sub-section (2) of Section 16 of the HMA 1955, would become a coparcener by birth. On the other hand, the express language used in sub-section (3) of Section 16 of the HMA 1955 is that the conferment of legitimacy shall not be construed as conferring any rights in or to the property of any person other than the parents.
The sum and substance of the judgment
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In terms of sub-section (1) of Section 16, a child of a marriage which is null and void under Section 11 of the HMA 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;
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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;
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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 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;
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While construing the provisions of Section 3(1)(j) of the Hindu Succession Act, 1956 (HSA) including the proviso, the legitimacy which is conferred by Section 16 of the HMA 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. 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, 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;
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Section 6 of the HSA 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;
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Section 6 of the HSA 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 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;
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Section 8 of the HSA 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;
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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 58 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;
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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, 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
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The provisions of the HSA have to be harmonized with the mandate in Section 16(3) of the HMA 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).
[Revanasiddappa v. Mallikarjun, 2023 SCC OnLine SC 1087, decided on 01.09.2023]
Judgment authored by Dr. Justice DY Chandrachud
Advocates who appeared in this case :
For Appellant(s): Ms. Kiran Suri, Sr. Adv., Mr. S.J. Amith, Adv., Ms. Aishwarya Kumar, Adv., Ms. Vidushi Garg, Adv., Mr. Purvesh Buttan, Adv., Dr. (Mrs.) Vipin Gupta, AOR, Mr. TSR Venkataramana, Sr. Adv., Mr. G.S. Mani, Adv., Janaki Devi, Adv., Mr. Abhay Singh, Adv., Mr. Ramesh Singh Thakur, Adv., Mr. R. Sathish, AOR, Ms. Manju Jetley, AOR, Mr. Vivek Solshe, Adv., Mr. Amol B. Karande, AOR, Mr. Narendra Rao Thaneer, Adv., Mr. Shivang Singh, Adv., Mr. Aditya Yadav, Adv., Ms. Palak Mathur, Adv., Mr. Varun Solshe, Adv., Mr. Satyajit A. Desai, Adv., Mr. Siddharth Gautam, Adv., Mr. Abhinav K. Mutyalwar, Adv., Mr. Gajanan N. Tirthkar, Adv., Mr. Vijay Raj Singh Chouhan, Adv., Ms. Anagha S. Desai, AOR, Mr. Sudhanshu S. Choudhari, AOR, Ms. Jaikriti S. Jadeja, Adv., Vatsalya Vigya, Adv., Mr. Sdhakul R. Ghatole, Adv., Mr. Mahesh P. Shinde, Adv., Ms. Rucha A. Pande, Adv., Mr. Aman Shreyas, Adv., Mr. M. Veeraragavan, Adv., Ms. Yashaswimi Chauhan, Adv., Mr. Ranbir Singh Yadav, AOR, Mr. Nikhil Majithia, AOR
For Respondent(s) Ms. V. Mohana, Sr. Adv. Ms. Bhavya Pandey, Adv. Ms. Sreha Botwe, Adv. Mr. Abid Ali Beeran P, AOR Mr. Vivek Chib, Sr. Adv. Mr. B. Ragunath, Adv. Ms. N.C. Kavitha, Adv. Mr. Vijay Kumar, AOR Mr. A.I.S. Cheema, Sr. Adv. Mr. Kunal Cheema, AOR Ms. Ruchita Kunal Cheema, Adv. Mr. Shivam Dube, Adv. Mr. Raghav Deshpande, Adv. Ms. Abha R. Sharma, AOR Mr. Apoorv Kurup, AOR Mr. Chandra Prakash, AOR Mr. P.B. Suresh, Adv. Mr. Vipin Nair, AOR Mr. S. Rajappa, AOR Mr. Avinash B. Amarnath, AOR Mr. Mukesh K. Giri, AOR Mr. Nishant Ramakantrao Katneshwarkar, AOR Mr. Samrat Krishnarao Shinde, AOR Mr. Shirish K. Deshpande, AOR Ms. Rucha Preavin Mandlik, Adv. Ms. Harsimra Kaur Rai, Adv. Mr. Sharangouda N. Patil, Adv. Mr. Mohit Gautam, Adv. Mr. Apoorv Sharma, Adv. Mr. Harrish Ahmed, Adv. Mr. Shanthakumar V Mahale, Adv. Mr. Rajesh Mahale, AOR Ms. Jyotika Kalra, AOR Mr. Aditya Jha, Adv. Ms. Annvesh Deb, Adv. Mr. Lakshmi Raman Singh, AOR Mr. H. Chandra Sekhar, AOR Mr. Sriram P., AOR
