Legitimacy of children of void and voidable marriages

Tarleen Kaur: legitimacy of children of void and voidable marriages

INTRODUCTION

The concept of nullity of marriage has its origin in the early English Law when the ecclesiastical courts exercised their jurisdiction over marriage-related disputes. Some impediments were laid down under English Laws, the violation of which questioned the validity of the marriage. These impediments have been classified into- absolute and relative impediments which further give rise to void and voidable marriages respectively. The Hindu Marriage Act, 1955 makes a distinction between void and a voidable marriage. Section 16 of the Act lays down that child of all void and annulled voidable marriages are deemed to be legitimate but are entitled to inherit the property of their parents alone. In general, a legitimate child is one whose parents are legally married at the time of his or her birth i.e. a child born out of a valid marriage. However, the scope of legitimate children has been widened by sec. 16 of the HMA, 1955.

CONDITIONS FOR A VALID MARRIAGE

According to Hindu Law, a valid marriage is the one which fulfils all the conditions laid down under Sec. 5 and Sec. 7 of the Hindu Marriage Act, 1955. However, if the conditions under Sec. 5 are not met, the marriage would become either void under Sec. 11 or voidable under Sec. 12. According to Sec. 5 of the Act,

Conditions for a Hindu marriage.– A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-

• neither party has a spouse living at the time of marriage;
• at the time of marriage, neither party-
• is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
• though capable of giving valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
• has been subject to recurrent attacks of insanity;
• the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;
• the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
• the parties are not sapindas of each other unless the custom or usage governing each of them permits of a marriage between the two.[1]

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VOID MARRIAGES

A void marriage is a marriage which is unlawful or invalid from its inception. Since a void marriage is no marriage, a decree of nullity is not necessary.[2] Only either party to the marriage can file a petition of nullity of marriage. A third person has no locus standi to file a petition for void marriage under Hindu Marriage Act, 1955.

Grounds of void marriage

According to Sec. 11,

“Void marriages– Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.”

Hence, in accordance with this provision, the grounds for a void marriage are as follows-

1. If either party has a spouse living at the time of marriage.
2. If the parties are within the degrees of prohibited relationship, unless their custom permits such a marriage.
3. If the parties are sapindas to each other, unless their custom permits such a marriage.

VOIDABLE MARRIAGES

A voidable marriage is a valid marriage till it is avoided by either party to the marriage. Unlike void marriage, the judicial declaration for a voidable marriage is imperative.

Grounds of voidable marriages

Sec. 12 of The Hindu Marriage Act, 1955 lays down the grounds for a voidable marriage as well as the pre-conditions for some of these grounds. The given grounds apply to pre as well as post- Act marriages. These grounds are as follows-

1. IMPOTENCY- Persistent and invincible repugnancy on the part of the respondent to the act of consummation amounts to impotency. Impotency is classified as- (i) Physical, and (ii) Mental impotency.
2. MENTAL CAPACITY OF THE PARTIES- This implies respondent’s incapacity to give a valid consent due to his/her suffering from a mental disorder i.e. the marriage is in contravention of Sec. 5 (ii) of the Hindu Marriage Act.
3. CONSENT OBTAINED BY FRAUD OR FORCE- If the consent of the petitioner, or the consent of the guardian whenever necessary is obtained by fraud or force, then the marriage is voidable. The pre-conditions for this ground are-
4. The petition must be presented within one year after the force has ceased to operate or the fraud has been discovered; and
5. After such discovery of fraud or cessation of force, the petitioner has not lived with the other party as husband or wife with his or her full consent.
6. PRE-MARRIAGE PREGNANCY- The basic requirement for this ground is that the respondent is pregnant at the time of the marriage by some person other than the petitioner. Other preconditions are-
7. The petitioner at the time of the marriage was ignorant of the respondent’s pregnancy.[3]
8. The petition must be presented within one year (of the commencement of the Act in case of pre-Act marriages and of the date of marriage in case of post- Act marriages.
9. Marital intercourse did not take place with petitioner’s consent after the discovery of the respondent’s pregnancy.

CHILDREN OF VOID AND VOIDABLE MARRIAGES

Background of Legitimacy of children at the time of passing of Hindu Marriage Act, 1955

At the time of the enactment of the Hindu Marriage Act, 1955, we adopted the position of children of voidable marriages given under the Matrimonial Causes Act, 1950 (English Law), according to which the status of legitimacy was conferred on the children of annulled voidable marriage. In addition to this, we conferred the status of legitimacy on children of void marriages also.

After the Amendment

The language used in the Act led to the interpretation that the children of only declared void marriages were provided with the status of legitimacy. This was amended by the Marriage Laws (Amendment) Act, 1976. As a result of this amendment, Sec. 16 of the Hindu Marriage Act, 1955 lays down that the children of annulled voidable marriages and children of void marriages (whether declared void or not) are legitimate children.[4] So, Sec 16 of HMA, 1955 confers the status of legitimacy on the children of void and annulled voidable marriages. Before the 1976 amendment, children of void marriage were legitimate only if a decree of nullity was granted in respect of such marriage under sec 11 of the act. At present, the position of children of void and voidable marriages, as provided under Sec. 16 of the Act, is as follows-

1. Children of unanulled voidable marriages shall be legitimate in the same way as children of valid marriage are.
2. Children of void marriage (whether declared or not) and annulled voidable marriage shall be deemed to be legitimate, but such children will inherit the property of their parents alone and of nobody else.
3. If the marriage is void or voidable under any other provision of law, other than Sections 11 and 12 of the Act, the children will be illegitimate.[5] For example, if a marriage is void for lack of performance of requisite ceremonies, the provisions of Sec. 16 will not apply.[6]

Such children can inherit the separate property of their father under Section 8, Hindu Succession Act, 1956, but could not lay any claim on the coparcenary interest of the father. Child of such marriage has no birth right in the Hindu joint family property.[7]

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CONCLUSION : legitimacy of children of void and voidable marriages

The position of children of void and voidable marriages has undergone a gradual improvement. Earlier, under English laws, children of only voidable marriages were considered to be legitimate. Further the status of legitimacy was also conferred on the children of void marriages under Hindu Marriage Act, 1955. After that the amendment made to Sec 16 through Marriage Laws Amendment Act, 1976 clarified that the declaration of a void marriage was not necessary to provide the status of legitimacy to the children of such a marriage. 

[1] Hindu Marriage Act, 1955: legitimacy of children of void and voidable marriages

[2] Lila v. Laxmi, 1968 All LJ 683.

[3] C.S. Rangabhattar v. Choodamani, 1992 AP 103

[4] Parayan Kandiyal v. K. Devi, (1996) 4 SCC 76                                                         

[5] Sujata v. Jagar, AIR 1992 AP 291

[6] M. Mattaya v. Kamu, AIR 1981 NOC 127 (Mad); Sudarsan v. State, 1988 Del 368; Santavam  v. Dagubai, 1987 Bom 182.

[7] Sujata v. Jagar, AIR 1992 AP 291

legitimacy of children of void and voidable marriages