- 1 Introduction
- 2 Under Hindu Marriage Act
- 3 Under the Special Marriage Act, 1954
- 4 Landmark Cases
- 5 Current Scenario
- 6 Conclusion
- 7 Relevant links
The legal status of children born out of invalid and voidable marriages is the subject of this article. It investigates a child’s legal rights under the Hindu Marriage Act and the Special Marriage Act.
In India, there are many misunderstandings about the legal status of children born of void and voidable marriages. A genuine child is one born to a legally married couple. We have invalid, voidable, and lawful marriages when it comes to marriage. While the labels void and voidable raise doubts about a marriage’s validity, legitimate weddings are, as the name implies, legal. The validity of a child born out of an annulled marriage is a key source of ambivalence in such situations.
Void marriages are null and void because they do not meet the requirements for a legitimate marriage. Voidable marriages are not ipso facto void, but the parties have the option of seeking nullity from a competent court of jurisdiction on the grounds provided by the statute. So, what happens to the children born as a result of void and voidable unions? What is their legal standing when the legal status of the marriage from which they were born is in shambles?
Under Hindu Marriage Act
The legal status of a child in a void and voidable marriage
When a decree of nullity is passed, in respect of a voidable marriage under Section 12 of the Hindu Marriage Act, 1955, a child is begotten or conceived before the decree is made is assumed to be a legitimate child despite the decree of nullity.
Rights of children born from the void and voidable marriages
Children born out of a null and void marriage or a marriage, annulled by a decree of nullity shall have any rights in or to the property of any other person except his parents in any case where, but for the passage of this Act, such child would have been incapable of possessing or acquiring any such rights due to his parents’ lack of legitimacy.
Under the Special Marriage Act, 1954
The legitimacy of Children of Void and Voidable Marriages
According to Section 24 of the Special Marriage Act, 1954, a marriage is void if it is: (a) a bigamous marriage, (b) marriage with a person of unsound mind or having another mental disorder, (c) marriage with a male or female under the age of 21, or (d) marriage with a person within the degrees of prohibited relationship.
A marriage is voidable under Section 25 of the Act if: (a) the marriage has not been consummated due to the respondent’s wilful refusal, (b) the respondent-wife was pregnant by someone other than the petitioner-husband at the time of marriage, or (c) either party’s consent to the marriage was obtained by coercion or fraud.
The status of children born of null and voidable marriages is discussed in section 26 of the 1954 Special Marriage Act. Subsection (1) states that if a marriage is found to be null and void under section 24 of the Special Marriage Act, 1954, any child from that marriage is legitimate, as it would have been if the marriage had been valid.
When a decree of nullity is given concerning a voidable marriage under Section 25 of the Special Marriage Act, 1955, a child begotten or conceived before the decree is made is assumed to be a legitimate child despite the decree of nullity.
Rights of the Child Born Out of Such Marriages
Children born out of a null and void marriage or a marriage annulled by a decree of nullity shall have rights in or to the property of any other person except his parents in any case where, but for the passage of this Act, such child would have been incapable of possessing or acquiring any such rights due to his parents’ lack of legitimacy.
Balkrishna Pandurang Halde, Vs. Yeshodabai Balkrishna Halde
The court decided that, while the children of a void marriage are considered legitimate, they are not entitled to any share of their parents’ ancestral coparcenary joint family possessions. Their right to claim the portion is limited to the extent of their father’s separate property, although they cannot make any claims in that property during their father’s lifetime. Only upon their father’s death, and then only through Inheritance, will they be entitled to their father’s distinct assets.
Bakulabai v. Gangaram
A kid born of a void marriage, between a woman and a man who already has a wife is to be recognized as a legitimate child entitled to maintenance under Section 125 of the Criminal Procedure Code.
Now, children born out of the void and voidable marriages are considered legitimate and have the right of Inheritance from their parent’s estate.
Before the Hindu Marriage Act of 1955, parties to marriage could not escape. Parties to an invalid and annullable marriage may seek relief under sections 11 and 12 of the Hindu Marriage Act, 1955. Under the 1976 Amending Act, a child born of a null and void marriage is considered to be legitimate. According to section 5 of the Hindu
Marriage Act, 1955, several conditions govern a legitimate marriage; if any of them is breached, the marriage becomes null and void.
Can avoiding marriage produce a legitimate child?
Ans. Children conceived or born before the judgment of annulment or absolute nullity of marriage under Article 36 have become final and executory shall be considered legitimate.
Does a child have any right to joint family property under void marriage?
Ans. Children born of void marriage are entitled to rights in the property of their parents.
Can a child inherit the father’s property?
Ans. A child can inherit the property of his or her mother or his or her illegitimate brother or sister.
When can a marriage be voidable?
Ans. A marriage made without the voluntary consent of one of the parties is generally considered voidable.
What happens if a marriage is voidable?
Ans. If the marriage is voidable, then the children are the rightful and lawful (‘legitimate’) children of the marriage even after the Nullity Decree has been granted.