Legitimacy of children of void and voidable marriage under hindu law by Gauri Bandre@LEXCLIQ

A child born out of a valid marriage is a legitimate child of the parents and hence is considered a legal heir and coparcenary as per Hindu succession law. Nevertheless, have you ever thought about what happens if a child is born out of a void or voidable marriage in that case what will be his rights and duties. To understand this concept better let’s have a look at section 16 of the Hindu Marriage Act which states that.

First, Any child born out of marriage determined to be null and void as per section 11 would be legitimate as if was born out of a valid marriage and not otherwise. Second, in respect to voidable marriage if a child begotten or conceived before the decree would have been deemed to be a legitimate child of the parties to the marriage is held to be a legitimate child notwithstanding the decree of nullity. So the essentials of section 16 is that to avail the benefit it is necessary to prove that marriage has taken place between two persons, either de jure that is by law further declared to be void or by de facto that is in practical purpose. If a man and woman lived together for a long spell as a husband and wife then it would be presumed in the favor of wedlock. If any of the parties to the marriage wants to rebut then the burden of the same would lie on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place.

Section 16(3) states that the children born out of a marriage which is null or void shall have any rights in or to the property of any other person except his parents, as in case would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents. This simply means that such a child would not have the status of a legitimate child as far as persons other than the parents are concerned. If before the wedlock the female would have conceived and given birth to the child after the marriage then such child cannot be termed as legitimate. As the was not the result of the present marriage he/she will be declared as an illegitimate child under the law.

Law lies in the favor of the legitimacy of the child simply because of the fault of the parents the court cannot punish the born or unborn child. If a law were, punish or declare illegitimacy of such children then a large number of children would lose the benefit under this act.


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