RIGHTS OF LEGITIMATIZED CHILDREN UNDER HINDU LAW

I Introduction
SECTION 16 of the Hindu Marriage Act, (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 section 11
of the Act. If no decree was obtained the children could not be legitimatized.
Further, in a collateral dispute relating to succession to the property an
ordinary civil court, other than the matrimonial court, could give a decision
that the marriage was a void one but without passing a decree of nullity.
In such cases also the children could not become legitimate,1 After the
amendment, under sub-section (1) of section 16 the children of void marriage
are legitimate whether a decree of nullity is passed or not. They are
legitimate even when the marriage between the parties is held to be void
otherwise than on a petition under the Act. In respect of the children of
voidable marriages sub-section (2) states that they are legitimate even on the
passing of a decree of nullity as though the marriage was dissolved by a
decree of divorce instead of being annulled. Thus section 16 confers the
status of legitimacy on the children of void and annulled voidable
marriages, it removes the long-standing social stigma suffered by the illegi-
timate children. However all illegitimate children are not made legitimate.-
The marriage must be null and void under section 11 or must be one that
has been annulled by a decree of nullity under section 12, before section 16
can apply.

II Restricted property rights

Though the status of legitimacy has been conferred on the children of
void and voidable marriages their rights in respect of property are restricted.
Sub-section (3) of section 16 states that the children who are made legitimate
under sub-sections (1) and (2) get or acquire rights in or to the property
of their parents only.3 Under the Hindu Succession Act 1956 (HSA) legi-
timate children can succeed to the property of their father and mother.
But illegitimate children can succeed to their mother only. This is because

1. These defects were pointed out by the Madras High Court in Tulasi Animal v. Gouri
AmmaU A.I.R., 1962 Mad. 510 and Tulasi Ammal v. Gouri Animal, A.LR., 1964 Mad. 118
2. For example a case of no marriage or a marriage without essential ceremonies is
not covered by section 16 and the children in such situations are illegitimate.
3. However if a child of void or voidable marriage is capable of possessing or acqui-
ring any rights in the property of any person other than his parents in some other capacity
or status he may get that property. See sub-section (3) of section 16.
1992] RIGHTS OF LEGITIMATIZED CHILDREN UNDER HINDU LAW 467

of the definition of the expression 'related' under section 3(00')- Tue

expression 'related' means related by legitimate kinship. But the proviso
to section 3(1 )(j) lays down that illegitimate children shall be deemed to be
related to their mother and to one another. Thus under the HSA illegitimate
relationship with the father is not recognised but it is recognised with the
mother.
The question for consideration is whether a child of void marriage or
annulled voidable marriage is entitled to succeed to his father undei the
provisions of the HSA. In Dadoo Atmaram v. Raghunath* a single judge
of the Bombay High Court, dealing with the rights of inheritance of a child
of void marriage, held that since a child of void marriage is illegitimate
he is not entitled to succeed to the estate of his father under the Act. In
this case section 16 of the HMA was not brought to the attention of the
learned judge and therefore its effect on the rights of the child of void
marriage was not considered. In Laxmibai v. Limbabai6 another single
judge considered the provisions of section 16, HMA and section 8, HSA.
Dealing with section 16 of the HMA the learned judge pointed out that the
effect of legitimacy is to confer rights in or to the property of parents. Then
dealing with the provisions of the HSA, he observed that 'son' and 'daughter'
are of class Heirs. The term'heir'means any person who is entitled to
succeed to the property of an intestate. 'Son' and 'daughter' are the des-
criptive natural terms indicating off-springs having only sex differential,
'son' indicating male off-spring and 'daughter' indicating the female off-
spring. To be the son or daughter, it has to be shown that the person
was born to a Hindu who has died intestate. Ifth? description is answered
then the person will be entitled to inherit the property of the father. The
ultimate conclusion of the court that the child of > oid marriage is entitled
to succeed to the property of the father is correct. But the learned judge
has not considered the matter in the light of the definition of the expression
'related5 under section 3(1 )(j) of the HSA. The question whether section
16 of the HMA controls section 3(1)(/) of the HSA was not considered.
As Dadoo Atmaram has not considered section 16, HMA and Laxmibai
has not referred to section 3(l)(j), HSA, they have been subjected to criticism
in Shantaram v. Dagubaft by the Division Bench. After examining the
provisions of both the Acts the Division Bench came to the conclusion
that legitimacy created by section 16 must be read into as part of the defini-
tion in section 3(1 )(j). If so construed the child of void marriage is releated
to his father within the meaning of section 3(1 )(J) and hence succeeds to
his estate. Thus the children of void and annulled voidable marriages are
entitled to succeed to the property of their father as legitimate children.

4. A.I.R. 1979 Bom. 176.

5. A.LR. 198$ Bom. 222.
6. A.I.R. 1987 Bom. 182.
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III Legitimatized son's rights

Another question for consideration is whether a son born under void

marriage is entitled to share in the joint family property under Mitakshara
law. In other words whether the legitimatized son acquires an interest by
birth in the joint family property under Mitakshara law. This matter has
been considered by courts in some cases. In one set of cases7 it was held
that though the children of void marriages are made legitimate sub-section
(3) of section 16 forbids the conferment of any right on them in the property
of another person, other than the parents. Therefore the legitimatized
son cannot get a share in the property which belongs to coparcenary of
which his father is a member. The legitimatized son is concerned with the
property left by his parents, i.e., he succeeds to the property on the death
of his parents.
In another set of cases8 it was observed that since the son of void marriage
is made legitimate, he is entitled to share in the coparcenary property.
But in these cases the effect of sub-section (3) on the rights of legitimatized
children was not considered. The question as to whether the legitimatized
son is entitled to share in the joint family property inspite of the restriction
under sub-section (3) was not considered and therefore not answered.
Recently the Division Bench of the A.P. High Court in Rasala Prakasa
Rao v. Rasala Venkateswara Rao* has considered in detail the rights of
illegitimate sons under the Hindu Law and the effect of section 16 on the
rights of such a child. Reviewing the Hindu Law texts and the case law10
on the point the court observed that illegitimate sons of the Dwijas are
entitled to maintenance only. The illegitimate son of a Sudra by a perma-
nently kept concubine has the status of a son and is a member of the family.
But his rights are limited compared to those of a son born in wedlock. He
has no right by birth and therefore he cannot demand partition during his
father's lifetime. If a partition is made during the father's lifetime, he
will be allotted a share by father's choice. But if a partition is made after
the father's death, the brother should make him a partaker of the moiety

1. Hanmanta v. Dondavvabai, A.I.R. 1977 Bom. 191; Shantaram v. Dhagubai,

A.I.R. 1987 Bom. 182; Sivagnana Vadivu Nachiar v. Krishna Kanta, (1976) 89 Mad, L. W.
706; Perumal Gounder v. Pachayappan, A.I.R. 1990 Mad. 110; and Jagarlamudi Sujata
v. Jagarlamudi Krishna Prasad, A.I.R. 1992 A.P. 291.
8. Raghunath v. Nana, (1985) 87 Bom. L.R. 448; Margabandhu v. Kothandarama
Mandhiri, (1983) 96 Mad. L.W. 448 and Goverdhan Fingh v. Hiraman Singh, 1980 (2)
A P U 172. It is to be noted that Raghunath was overruled in Shantaram supraf note 7 and
Margabandhu was reviewed in Margabandhu v. Kothandarama Mandhiri, (1987) 2 Mad.
L.J. 267 and a different conclusion was arrived at.
9. A.I.R. 1992 A.P. 234.
10. Valliyappa Chetty v. Natarajan, A.I.R. 1931 P.C. 294; Raju V. Arunagiri v. AJ.K.
Mad. 397; Guru Narain v. Guru Tahal Das, A.I.R. 1952 S.C. 225; Ajit Kumar v. Ujayar
Singh. A.LR. 1961 S.C. 1334; Dorai Babu v. Gopala Krishna, A.LR. 1960 Mad. 501;
Raghavendra Rao v. Rajeswara Rao, (1974) II An. W.R. 245.
 1992] RIGHTS OF LEGITIMATIZED CHILDREN UNDER HINDU LAW 469

of a share. On a partition the illegitimate son takes only half of what he

would have taken if he were a legitimate son. Thus he succeeds, under
Mitakshara law, to the father's estate as a coparcener with the legitimate
son with the result that on the death of the latter before partition he becomes
entitled to the whole estate by survivorship. Even if there is no legitimate
son, the illegitimate son would be entitled to moiety of his father's estate
where there is a widow, daughter or daughter's son of the last male holder.
In the absence of any one of the three heirs, he succeeds to the entire estate
of his father.11
Then considering the effect of section 16 on the rights of illegitimate son
the court observed that it (section 16) has conferred on him the status of
legitimate son and his other pre-existing rights are in no way curtailed.
After 1976 amendment the benefits of section 16 are enlarged. By virtue
of section 16 he can be equated with the natural son and treated as copar-
cener for the properties held by the father whether the property be originally
joint family property or not. He can share equally along with other sons.
The only limitation is that during the lifetime of the father he is not entitled
to seek partition. He can seek partition after the death of the father.12
The net result of the decision is that the legitimatized son does not
acquire any right by birth in the joint family property even by virtue of the
provisions of section 16. He becomes coparcener with the other legitimate
sons after father's death. On partition he shares equally along with other
coparceners in view of the provisions of section 16.13
There seems to be some contradiction in the judgment. According to
the court the share of the legitimatized son becomes enlarged under section
16 but he does not acquire any right by birth in the joint family property.
It is submitted that if it is possible under section 16 to enlarge the share
of the legitimatized son it should also be possible to confer on him a right
by birth in the joint properties. The court should have taken a pragmatic
view and arrived at a right conclusion. It iust missed an opportunity to
correct the things.
The following are the consequence of the decision. Firstly, the legiti-
matized son does not become a coparcener with his father and therefore
he is not entitled to claim a share during the life time of the father. Secondly.

11. Id. at 237 and 238.

12. Id. at 246.
13. It seems that the court wrongly applied the provisions of section 16 to the facts
of the present case. Legitimacy is conferred by sub-section (1) of section 16 on the
children of a marriage which is null and void under section 11. Section 11 applied only
to marriages solemnized after the commencement of the Hindu Marriage Act and does
not relate to marriages solemnized prior to the said Act. Section 16 does not confer
legitimacy on the child born of a marriage invalid under the law in force prior to the
commencement of the Act. In the instant case the second marriage (void marriage) took
place before the commencement of the Act and hence the provisions of section 15 are not
applicable accordingly. See P.E. K. Kalliani v. K. Devi, A.I.R. 1989 Ker. 279.
470 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 34 : 3

a partition is made between the father and legitimate sons but no share is
allotted to the legitimatized son. Later he will not be entitled to share.14
Thirdly, the father dies undivided in terms of the proviso to section 6, HSA.
In such a situation whether share is to be allotted or not to the legitimatized
son under notional partition. Under notional partition shares are allotted
to the coparceners as if partition has taken place before the death of the
father. If that is the case share may not be allotted to him. Lastly, the
legitimatized son in respect of twice born castes is not entitled to share
in the joint family property in any case. The exclusion of him from the
enjoyment of property on the basis of caste is unreasonable.15
It is submitted that the legitimatized son becomes coparcener with his
father and he is entitled to claim a share even during the lifetime of his father.
Under section 16 he is legitimate and the legitimacy relates back to the
date of his birth. Therefore, he acquires an interest by birth in the ancestral
property of his father and becomes coparcener with him. This can be
explained with the following simple illustration. A, a Hindu male, who is
a sole surviving coparcener or separated coparcener married B, a Hindu
female according to Hindu customary rites and ceremonies. However A's
marriage with B is void for the reason that they are within the sapinda rela-
tionship. X, a son is born under the marriage. Section 16 confers the status
of legitimacy on X and it also confers on him a right in or to the property
of his father. As X is legitimate he acquires an interest by birth in the ances-
tral property held by the father. It is submitted that same is the case even
if there is another coparcener with the father. The acquisition of an interest
in the coparcenary property may have the effect of decreasing the shares of
other legitimate sons (if any) but it does not amount to diverstment of
property vested in them.16 The share of a coparcener in Mitakshara copa-
rcenary becomes specified only on partition. Before partition it is a
fluctuating interest. Therefore acquisition of an interest by the legitimatized

14. The legitimatized son can only succeed to the father's share as a class I heir under
the Hindu Succession Act.
15. In/« re Amina, A.I.R. 1992 Bom. 214, D.R. Dhanuka, J. expressed the view
that personal laws are *law' and "laws" in force" under Article 13 of the Constitution
and they must conform to the fundamental rights. According to the learned judge
some of the provisions of personal laws like a Muslim man's right to take more than
one wife, uniletaral divorce, gross inequality in matter or inheritance are unjust and
unconstitutional. If the views of the learned judge are correct, then the exclusion
of children from the enjoyment of property on the basis of caste is also un-
constitutional.
16. The Supreme Court in Vasant v. Dattu, A.I.R. 1987 S.C. 398, has held that the
son adopted by the widow of a deceased coparcener becomes a coparcener with others
in Mitakshara coparcenary. The acquisition of an interest in the joint family property
by the adopted son may have the effect of decreasing the shares of other coparceners but it
does not amount to divestment of property within the meaning of the proviso (c) to section
12, Hindu Adoptions and Maintenance Act, 1956. See also Agalawe v. Agalawe, A.LR
1988 S.C. 845.
1992] RIGHTS OF LEGITIMATIZED CHILDREN UNDER HINDU LAW 471

son in the ancestral property does not amount to acquisition of right in the
property of other coparceners. The restriction under sub-section (3) of
section 16 with regard to the acquisition of right in the property of others,
other than the father, is applicable to the case of an undivided interest of a
coparcener dying in terms of section 6 of the HSA. Thus if a coparcener,
other than father, dies leaving his undivided share then the legitimatized
son cannot claim it either by succession or survivorship. Sub-section (3)
in no way prohibits the acquisition of an interest by birth in the ancestral
property of the father by the legitimatized son.
The provisions of section 16 are beneficial in nature and hence they
must be liberally interpreted. Even if two interpretations are possible
we must prefer that interpretation which will remedy the injustice.17 The
benefits that are conferred by section 16 are not confined to matters of
intestate succession alone but may extend to others also. Sub-section
(3) of section 16 enables the legitimatized son to acquire an interest in the
property of his father. Such a right cannot be denied to him merely because
of the presence of another coparcener. The intention of the legislature is
clear. It is to confer on the legitimatized child a right in or to the property
of the father. If the father is in possession of ancestral property the legi-
timatized son acquires an interest in it by birth. If the father is in possession
of separate property he succeeds as a class 1 heir after the death of the
father.
Thus the forgoing discussion makes it clear that the legitimatized son
becomes a coparcener with his father and he is entitled to share in the joint
family property during the lifetime of the father and even in the presence of
other coparceners.
Apart from this, it may be mentioned here that under the old Hindu
Law the illegitimate son of a Sudra from a permanent concubine was
related to his putative father and succeeded to the estate of the father along
with legitimate sons, though not equally. Now under the Hindu Succession
1
Act the illegitimate son of a Sudra too is not entitled to succeed to his
putative father. In some countries like New Zealand, Russia and in parts
r
of Australia and Canada the distinction between legitimate and illegitimate
child has been done away with. All children, whether born to married
parents or unmarried parents, possess the same rights. In England after
the passing of the Family Law Reform Act 1987 illegitimate children enjoy
full rights of succession. It is unfortunate that the HSA, instead of pro-
tecting the rights of illegitimate children has taken away their rights once
enoyed by them. There is an urgent need for an amendment of the law
so as to confer more rights on illegitimate children.
V. Raveendra Reddy*

17. Gurupad v. Hirabai, A.I.R. 1978 S.C. 1239.

* Lecturer, Sir C.R.R. Law College* Eluru, A.P.