02/07/2018
S.16 of Hindu Marriage Act, 1955-
Children of Void and Voidable Marriages:
Distinction between legitimate and illegitimate children is still maintained, there is tendency in most of the countries including India to blur this distinction in this regard.
Under the Hindu law, an illegitimate child has never been considered and he had no right of inheritance or survivorship in the presence of natural son.
Broadly speaking , a child born within lawful wedlock has been considered to be a legitimate child, and a child who is born outside the lawful wedlock to be an illegitimate child. Section 112 of the Indian Evidence Act, 1872 lays down a rule of presumption in this regard. it lays down that (1) a child born within the lawful wedlock (at ant time, even soon after the marriage) or (2)a child born within 280 days of the dissolution of marriage by death or divorce, will be conclusively presumed to be the child of his father, provided the mother remained unmarried.
The position regarding the children of void and voidable marriage under the Hindu marriage act (S.16 )and special marriage act (Section 26) is:
(1) Children of unannulled voidable marriage are legitimate in the same way as children of an otherwise valid marriage are.
(2) Children of annulled voidable and void marriages are legitimate but they will inherit the property of their parents alone and of none else.
It may be noted that before the 1976 Amendment to the Hindu Marriage Act, a status of legitimacy was conferred on the children of those void marriages, which were declared null and void. if marriage was not declared null and void the children remained illegitimate. but the position has been changed by the 1976 Amendment. Now such a declaration (i.e. a decree of nullity) is not required to confer a status of legitimacy.
Under Section 16, by a fictio juris (legal fiction), a child born of a void or voidable marriage is deemed to be the legitimate child of his parents.
(3) if the marriage is void or voidable under any other provision of the law, except section 11 and 12 (which lays down the grounds of void and voidable marriages) the children will be illegitimate. Such a case will be, for instance, when the marriage is void for lack of performance of valid ceremonies.
Thankyou,
Adv. Jolly Vikash
