This article is written by Almana Singh. It deals with the analysis of a judgement pronounced by the Hon’ble Supreme Court of India in the case of Revanasiddappa and Ors. vs. Mallikarjun and Ors., (2011) 11 SCC 1 wherein the question of the right to property of a child born out of a void marriage or voidable marriage was answered. It explores whether such children are entitled to self-acquired property or ancestral property of the parents or both. 

Introduction 

When two adults choose to have a child out of wedlock or under a void/voidable marriage, the children born from such relationships face significant societal stigma despite having no control over the circumstances of their birth. In traditional Hindu communities, such children are unfairly labelled as “illegitimate” and they face severe limitations on their rights related to inheritance and property. The Supreme Court of India tackled this issue on two separate occasions. This article aims to provide a thorough analysis of the factual background, arguments advanced and a brief the judgements pronounced in the case of Revanasiddappa and Ors. vs. Mallikarjun and Ors. Firstly, in 2011 the two-judge bench referred the case to a larger bench and subsequently in 2023, the court discussed the interpretation and legislative intent behind the provisions involved in this case. 

Details of the case 

  1. Name of the case: Revanasiddappa and Ors. vs. Mallikarjun and Ors. 
  2. Petitioners: Revanasiddappa and Ors. 
  3. Respondents: Mallikarjun and Ors. 
  4. Court: Hon’ble Supreme Court of India
  5. Case type: Civil Appeal 
  6. Date of Judgement: 01st September 2023
  7. Bench:
    • 2011 judgement: Justice G.S. Singhvi and Justice A.K. Ganguly 
    • 2023 judgement: Chief Justice of India D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra
  8. Equivalent citations: 
    • 2011 judgement: [MANU/SC/0299/2011] [2011 (2) KLT 176] [2011 GLH (1) 757] [2011 (I) CLR (SC) 976]
    • 2023 judgement: [MANU/SC/0956/2023] [(2023) 10 SCC 1] [2023 GLH (3) 757] [2023 (4) CCC 64]
  9. Provisions and statutes involved: Section 5, 11, 12, and 16 of the Hindu Marriage Act, 1955; Section 6 of the Hindu Succession Act,1956; Article 300A of the Constitution of India. 

Background of the case 

The husband, who is the first defendant, has two wives along with two children from each wife. The first wife and her children are the plaintiffs in the case and the second wife along with the husband are the defendants. 

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The first wife and her two children filed a suit for partition and separate possession against the defendants asking for 1/4th share each in the ancestral property which is given to the husband by way of grant. The plaintiffs argued that the husband’s marriage with the second wife was invalid as it had happened when the first marriage was subsisting and children born out of the second marriage would not be entitled to ancestral property as they were not part of the coparcenary. 

Facts of the case 

The first wife, along with her two children, filed a suit for partition alleging that they are entitled to 1/4th share each in the ancestral property of the husband and that the second marriage with the second wife is invalid and her children are not part of the coparcenary and hence, are not entitled to the ancestral property. 

Trial Court

The Trial Court, by its judgement dated 28 July 2005, held that the husband was neither able to prove the existence of an oral partition nor that a divorce had taken place when he married the second wife. The second marriage was declared void by the Trial Court. The plaintiffs and the husband were held to be entitled to 1/4th share each in all the suit properties. 

First Appellate Court

Aggrieved by the Trial Court’s judgement, the defendants filed an appeal in the First Appellate Court. After reconsideration and re-appreciating the entire evidence, the Appellate Court affirmed the findings of the Trial Court. However, the Trial Court’s decision that illegitimate children born out of void marriage or situations of similar nature are not entitled to share in coparcenary property was reversed while referring to a judgement pronounced by a division bench of the Karnataka High Court in the case of Smt. Sarojamma and Ors. vs. Smt. Neelamma and Ors. (2005). The Appellate Court held that children born out of void marriage are on the same pedestal as that of coparceners and enjoy the same rights as them. The plaintiffs and the defendants were entitled to 1/6th share each in the ancestral properties. 

The plaintiffs, aggrieved by the Appellate Court’s judgement, filed an appeal in the High Court of Karnataka. 

High Court of Karnataka

There were two questions before the High Court,

  1. Whether the illegitimate children born out of void marriage are regarded as coparceners according to the Hindu Marriage Act, 1956.
  2. Whether during partition between the coparceners of the ancestral property, illegitimate children are entitled to a share in the said property.

The High Court cited the case of Sri Kenchegowda vs. K.B. Krishnappa and Ors. (2008) and observed that both questions have been covered under this case. The High Court opined that both the children born out of the second marriage were illegitimate, and the marriage itself was void. Section 16(3) of the Hindu Marriage Act, 1955 makes it clear that illegitimate children are entitled to self-acquired property only and not coparcenary or ancestral property. The first and second defendants were part of the coparcenary and had the right to claim partition whenever they deemed fit. The High Court affirmed the orders of the Trial Court and First Appellate Court and allowed the appeal. First and second plaintiffs i.e. the children from the first wife along with the husband, were entitled to 1/3rd share each in the suit property. 

Aggrieved by the judgement of the High Court of Karnataka, the second and third defendants i.e. children of the second wife, filed an appeal in the Supreme Court, and the judgement of the same was pronounced on 31 March 2011.

Issues involved 

The question dealt with by the Supreme Court was whether illegitimate children are entitled to a share in the coparcenary property or whether their share is limited to the self-acquired property of the parents in accordance with Section 16(3) of the Hindu Marriage Act, 1955?

Laws discussed 

This case went into deep discussions about several provisions under the Hindu Marriage Act, 1955 and Hindu Succession Act, 1956. The most cited Sections by the Supreme Court in both of the judgements have been briefed below. 

Hindu Marriage Act, 1955

Section 5 of Hindu Marriage Act

  1. A marriage between two Hindus will be considered valid and solemnised if the conditions provided under Section 5 are fulfilled. 
  • Neither individual should have a living spouse at the time of the marriage.
  • At the time of the marriage, neither party should be unable to give valid consent due to unsoundness of mind 
  • Although can give consent but suffer from a mental disorder which makes them unfit for marriage and child-bearing 
  • Has experienced constant and repeated episodes of insanity 
  1. Males should be at least 21 years old and females should be at least 18 years old. 
  2. Individuals should not be in prohibited degrees of relationship. However, this condition can be overridden by a custom or a tradition that allows such marriages.
  3. Individuals should not be Sapindas (close blood relatives). However, this condition can be overridden by a custom or a tradition which permits such marriages. 

Section 11 of Hindu Marriage Act

This Section talks about the nullity of void marriages. After the enactment of the Hindu Marriage Act of 1956, any marriage that violates the conditions of valid marriage laid down in Section 5 will be considered null and void. Either spouse can request a court of competent jurisdiction to declare such marriage the same through a formal decree of nullity. 

Section 12 of Hindu Marriage Act

Section 12 talks about voidable marriages and has two sub-sections which are briefed below. 

  1. Any marriage that is solemnised before or after the commencement of this Act can be annulled by a decree of nullity on the basis of the following grounds:
  1. The marriage was not consummated due to the impotence of the respondent.
  2. The marriage contravenes the condition specified in clause (ii) of Section 5 i.e. unsoundness of mind, mental disorder or repeated episodes of insanity.
  3. If the consent of the petitioner or the guardian of a minor was obtained through force or fraudulent means regarding the nature of the ceremony or any other significant fact or circumstance regarding the respondent.
  4. The respondent was pregnant by someone other than the petitioner at the time of their marriage.

2. Despite the grounds mentioned in sub-section (1), no petition for nullity of marriage will be entertained in the following cases:

  1. On the ground specified in clause (c) of Sub-Section (1),
  • No petition of nullity of marriage is entertained if the petition is filed more than one year after the force ceased to exist or the fraud was discovered. 
  • If the petitioner, with their full valid consent, lived with the other party as their husband or wife, whatever the case might be, post the cessation of force or discovery of fraud. 
  1. On the ground specified in clause (d) of Sub-Section (1), unless the court is satisfied that:
  • The petitioner was unaware of the facts at the time of marriage.
  • If marriage is solemnised before the commencement of the Hindu Marriage Act, 1955 or proceedings are instituted within 1 year of commencement of the Act and for marriages solemnised after the commencement, the deadline would be one year from the date of marriage. 
  • No marital intercourse with the consent of the petitioner has taken place since the discovery of the alleged ground. 

Section 16 of Hindu Marriage Act

Sub-Sections (1) and (2) of Section 16 confers legitimacy onto the children born out of void and voidable marriages, while Sub-Section (3) limits their right to entitlement of property.

Section 16(1) states that regardless of a marriage being null and void under Section 11, any child from such marriage would be legitimate. This applies whether the child was born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976). It also applies whether or not a decree of nullity has been granted under this Act and whether or not the marriage is declared void through other means. 

Section 16(2) states that if a voidable marriage is annulled by a decree under Section 12 and any child conceived or born before the decree who would have been legitimate if the marriage had been dissolved rather than annulled will be considered legitimate despite the decree of nullity. 

Section 16(3) states that provisions of sub-sections (1) and (2) do not actually grant any child from void and voidable marriages any property rights other than those from their own parents.

Hindu Succession Act, 1956

The Supreme Court of India referred to Section 6 of the Hindu Succession Act throughout its judgement. Section 6 was majorly amended in 2005 Below is given a thorough explanation of Section 6 pre and post amendment. 

Section 6 of Hindu Succession Act, pre-amendment (before 2005)

Section 6 of the Hindu Succession Act, 1956 prior to the amendment, governed the devolution of interest in coparcenary property within a Joint Hindu Family (hereinafter referred to as “JHF”) governed under the Mitakshara school of Hindu law. The Mitakshara school of Hindu law is one of the two major schools of Hindu law. It is a traditional legal system that governs the inheritance and property rights of the JHF.

Before the amendment of 2005, the interest of a male Hindu in his coparcenary property upon his death would devolve in accordance with the rule of survivorship. However, there existed an exception where if the deceased had a surviving female relative specified under Class 1 of the Schedule attached along with the Hindu Succession Act, 1956 or a male relative specified in that class who claimed through such female relative. In such cases, the interest of the deceased would devolve via testamentary or intestate succession and not by rule of survivorship. 

Explanation 1 of Section 6 established a legal fiction where the partition would take place in such a manner that it was done right before the death of the Mitakshara coparcener, and irrespective of his death, he is entitled to his claim. 

Explanation 2 clarified that those separated from the coparcenary before the deceased’s death could not claim their share in the interest of the deceased. 

Section 6 of Hindu Succession Act, post-amendment (after 2005)

The amendment brought by Act 39 of 2005, which was made effective from 09 September 2005 significantly altered Section 6. 

The amended Section 6(1) granted daughters the same rights as sons in coparcenary property within a JHF governed by Mitakshara school. It stated that from the commencement of the Hindu Succession (Amendment) Act, 2005 daughters would by birth become coparceners and have the same and equal rights and liabilities as sons. This amendment was aimed to eliminate gender discrimination deep-rooted in the earlier provision by allowing daughters an equal right to ancestral property as their male counterparts. 

The proviso of this section stated that any disposition or alienation of the property, which also includes testamentary disposition which occurred prior to 20 December 2004, would remain unaffected. This amendment was aimed to promote and uphold the principles of gender equality.

Constitution of India

The Supreme Court, in both the judgements of 2011 and 2023, made references to Article 300A of the Constitution of India.

Article 300A of the Constitution

It guarantees that no person shall be deprived of their property except by authority of law. This provision was introduced in the Constitution of India by the Constitution (44th Amendment) Act, 1978, which also repealed Article 19(1)(f) and restructured Article 31(1) into Article 300A by placing it in Chapter IV of Part 12 of the Constitution. Article 300A makes it abundantly clear that while the right to property is not a fundamental right, it remains a constitutional right under the Constitution of India.

Judgement in Revanasiddappa and Ors. vs. Mallikarjun and Ors. (2011)

The Supreme Court cited Section 16 of the Hindu Marriage Act, 1955 and opined that a child of a void or voidable marriage can only claim rights on the self-acquired property of the parents and nothing else. However, on a thorough reading of Section 16, it is rather interesting to note that the legislature has used the word “property”, which has made the ambit of the Section broad and generic. The word “property” can include self-acquired property or ancestral property. It has not been specified. 

Prior to the enactment of Section 16(3), this issue of illegitimate children born out of void or voidable marriage being entitled to self-acquired property or ancestral property was discussed through a number of cases, and it was acknowledged that the illegitimate children of Shudras have right in father’s coparcenary property to an extent. The court cited several cases prior to the enactment of Section 16(3), which affirm the rights of illegitimate children. The court was of the opinion that Section 16 was introduced with the intent to bring a change and remove the stigma attached to the illegitimacy of children born out of void or voidable marriage. 

The court then cited 3 cases, namely, Jinia Keotin and Ors. vs. Kumar Sitaram Manjhi and Ors.(2002), Neelamma and Ors. vs. Sarojamma and Ors.(2006), and Bharatha Matha and Anr. vs. R. Vijaya Renganathan and Ors. (2010), all of which have been briefed under the sub-heading “Precedents referred to by the court in Revanasiddappa and Ors. vs. Mallikarjun and Ors. (2011)”. These judgements dealt with the issue of property and the extent to which illegitimate children are entitled to shares and rights in the said property. The court was of the opinion that these cases opted for a narrow interpretation of Section 16. The legislature used the word “property” in clause 3 of Section 16 and is silent as to whether it entails ancestral property, self-acquired property of the parents or both.  

Constitutional validity of Section 16(3)

The Supreme Court opined that enactment of Section 16(3) means that illegitimate children are not entitled to any property rights from anyone other than their parents. However, this restriction is not applicable to parents’ property. Section 16(1) and Section 16(2) affirm that illegitimate children are at par with legitimate children and are entitled to rights in their parent’s property, whether self-acquired or ancestral and should not be discriminated against. The restriction under Section 16(3) is only applicable to property from individuals other than their parents. The constitutional validity of Section 16(3) was challenged in the Supreme Court in the case of Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt.) and Ors. vs. K. Devi and  Ors. (1996). The court upheld the law and stated that the Hindu Marriage Act, 1955, is a beneficial legislation that is aimed at advancing social reforms by granting legitimacy to children born from void or voidable marriage. In paragraph 75 of the judgement in the above-mentioned case, the court noted that Section 16(1) has been amended to operate independently of Sections 11 and 12. This means that children born out of a void marriage would be considered legitimate regardless of the nullification of that marriage in accordance with Section 11. This principle is applicable to children born before or after the amendment. Illegitimate children must be treated as legitimate for all practical purposes, including inheritance from their parents. However, they cannot inherit from other relatives based on this rule given under Section 16(3), and it is limited to parents’ properties only. With this amendment of Section 16(3), the traditional view that children from void and voidable marriages are illegitimate ipso jure, meaning by the law itself, must change completely. This Section aims to promote the idea of removing the stigma of illegitimacy from illegitimate children who are as innocent as any other children. 

Coming back to the case at hand, the Supreme Court opined that children from void and voidable marriages can inherit their parent’s property but cannot claim it independently. When ancestral property is divided, the share that goes to their parents transforms into their parent’s self-acquired and absolute property. In accordance with Section 16, there is no reason illegitimate children should not have a share in such property as they are considered equal to legitimate children of a valid marriage. The only limitation is that illegitimate children cannot ask for partition while their parents are alive, and they can only do so after the death of their parents. 

The Supreme Court should interpret socially beneficial laws to further their purpose and not hinder it. Article 39(f) of the Constitution of India states that the State should ensure children develop healthily, with freedom and dignity, and are protected against exploitation and abandonment. This principle should be the guiding light for interpretation of Section 16(3). The Supreme Court then referred to Article 300A, which guarantees that no person can be deprived of their property except by law. Although property rights are not fundamental rights, they remain constitutional rights. Section 16(3) does not restrict these rights; rather, it puts a limitation and constrains the property rights to the parent’s property only which can either be self-acquired or ancestral. 

The Supreme Court concluded and opined that this matter should be reconsidered by a larger bench and that the case records should be placed before the Chief Justice of India for this purpose. 

Precedents referred to by the court

Smt. Sarojamma and Ors. vs. Smt. Neelamma and Ors. (2005)

In the case of Smt. Sarojamma and Ors. vs. Smt. Neelamma and Ors. (2005), the Karnataka High Court addressed the question of legitimacy and inheritance rights of children born out of void marriages under the Hindu Marriage Act, 1955. The Trial Court’s decision was upheld, which stated that the first plaintiff was not a legally wedded wife of Kuruvathi Basavarajappa due to his subsisting first marriage, and this would render his second marriage void under Section 11 of the Hindu Marriage Act, 1955. It was noted that children born out of such marriages are considered legitimate under Section 16, and along with this, the court observed that in accordance with Section 16(3) of the Hindu Marriage Act, 1955, children born from void and voidable marriages are entitled to their parent’s properties which include parents self-acquired as well as join family or ancestral property. 

Jinia Keotin and Ors. vs. Kumar Sitaram Manjhi (2002)

In this case, the plaintiff initiated this suit seeking 1/6th share in Schedule A to D properties and 1/3rd share in Schedule E properties. The ancestral properties were to be divided among Sahadeo Manjhi, Mahadeo Manjhi and their mother, Dukhani Keotin, who all were also the defendants in this case. Sahadeo’s 1/3rd share was further divided into 4 equal parts. Defendants 8 to 11 were deemed ineligible to entitle this share due to the void nature of Sahadeo’s marriage with the 8th defendant. This marriage was deemed void because it had occurred after the enactment of the Hindu Marriage Act, 1955 while his marriage with Smt. Kamli Devi was still subsisting. 

During the pendency of the case, Sahadeo passed away. His 1/9th share was now to be devolved upon all his heirs, which include the plaintiff, his daughter, his mother (defendant No. 6), his wife (defendant No. 7), defendant Nos. 9, 10, and 12, along with appellant No. 7 i.e. Sahadeo’s son from his wife, Jinia Keotin. Each of Sahadeo’s eight heirs was entitled to an equal share of 1/72 from the 1/9th share. Dissatisfied by this partition, the second wife, along with her children, filed an appeal. 

The counsels for appellants, in this case, argued that children born of void marriages under Section 16 should be treated as at par with the children born out of lawful marriages. The opposing counsel contended that Section 16(3) clearly restricts such inheritance rights to the parents’ property only. The appeal was dismissed and the Lower Court’s decision was upheld. This judgement, pronounced by the Supreme Court of India, affirmed the legislative intent behind Section 16(3). 

Neelamma and Ors. vs. Sarojamma and Ors (2006)

In this case, the appellants sought partition and separate possession of their share in the JHF after the death of Kuruvathi Basavarajappa. The 1st plaintiff claimed to be the legally wedded wife of Kuruvathi, and plaintiffs 2 and 3 claimed to be his children. On the other hand, the defendant, Sarijamma, claimed to be Kuruvathi’s legally wedded wife. 

The question at hand was whether plaintiffs 2 and 3, as alleged children of Kuruvathi Basavarajappa from a void marriage, are entitled to a share in JHF property. The conflict arose at the interpretation of Section 16(3). The petitioners argued that although the marriage is void, plaintiffs 2 and 3 are entitled to their share in JHF property and on the other hand, the respondents claimed that illegitimate children cannot claim their right to ancestral property and additionally, their rights are restricted to self-acquired property. 

The Karnataka High Court took a narrower approach and referred to the Jinia Keotin case, wherein it was held that Section 16(1) and 16(2) enshrine legislative legitimacy, but Section 16(3) limits the rights of illegitimate children. 

Bharatha Matha and Anr. vs. R. Vijaya Renganathan and Ors. (2010)

In this case, the appellant’s predecessor, Peria Mariammal, filed a suit in 1975 for property rights and claimed that her brother, Muthu Reddiar, died unmarried and intestate. The defendants in this case contested the suit and claimed that there existed a live-in relationship with Muthu Reddiar and they had rights in Reddiar’s property through their children. The Supreme Court dealt with the issue of whether a marriage between Rengammal and Alagarsami Reddiar was proven and affected the legitimacy of the children along with their right to inherit their property. The Supreme Court went into discussions about the live-in relationship and later ruled that there did not exist any presumptive marriage due to long cohabitation together, and thus, it denied the inheritance rights to the children concerning the coparcenary property. 

Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt.) and Ors. vs. K. Devi and  Ors.(1996)

Parayankandiyil Kanhirankunnath Kurungodan Raman Nari died on 09th January 1975 leaving behind a considerable number of properties in Kerala and Tamil Nadu. He had two wives and 14 children. It is to be noted that his 2nd marriage took place while his 1st wife was still alive. The Supreme Court of India found that his 2nd marriage was invalid and deemed the children from that marriage as illegitimate. The court referred to legal fiction in accordance with Section 16(3), which treats all children, including illegitimate children, at par with legitimate children. The court opted for a broader interpretation and held that children from the void 2nd marriage would inherit Raman Nair’s properties in accordance with Section 16(3), and they would be entitled to the shares in JHF property too. 

This judgement aligns with the Hindu Marriage Act’s purpose of social reform and granting legitimacy to children born from void marriages. It ensures that these children are not discriminated against merely due to circumstances which led to their birth. This would be unfair and contradictory to the democratic principles of equality enshrined in the Constitution of India. 

The Supreme Court in Revanasiddappa and Ors. vs. Mallikarjun and Ors. (2011) referred to several judgments. It was of the opinion that the Jinia Keotin case, Neelamma case and Bharatha Matha case interpreted Sub-Section 3 of Section 16 in a narrow manner, and the intent behind the Hindu Marriage Act is social reform and gender equality was pushed in the back seat. The court took a different approach to the question of inheritance from that of the above-mentioned cases except for the Parayankandiyal Eravath case where the progressive intent of the legislation was taken into consideration. 

Revanasiddappa and Ors. vs. Mallikarjun and Ors. (2023)

Later, the issue was raised before a larger bench, and this section of the article deals with a summary of the judgement pronounced by the Supreme Court of India on 01 September 2023, which was penned by Chief Justice of India, Dr. Dhananjaya Y. Chandrachud.

Issues raised 

  1. Whether the intent of the statute is to confer legitimacy on an illegitimate child under Section 16 that, in a way, makes them coparceners and allows them to claim a share in the partition?
  2. According to Section 16(3), children with legislative legitimacy can only claim rights on their parent’s property. Therefore, at what point does a specific property become the property of parents?

Judgement 

The summary of the judgement pronounced in 2023 has been given below.

  • Under Section 16(1), a child from a marriage which is null and void under Section 11 is ensured legislative legitimacy despite the following conditions.
    • Firstly, whether the child was born before or after the commencement of the 1976 Amendment; 
    • Secondly, whether a decree of nullity is issued for that marriage under the Act or if the marriage is declared null through means other than a petition. 
  • Sections 16(1) and 16(2) confer legitimacy on children, where they are entitled to their parent’s property only and not any third person. 
  • When interpreting Section 3(1)(j) of the Hindu Succession Act, 1956 it is imperative that legitimacy conferred by Section 16 of the Hindu Marriage Act, 1955 is considered and a child conferred legislative legitimacy would be covered under the definition of ‘related by legitimate kinship’ and cannot be considered illegitimate for the purposes of Section 3(1)(j).
  • Section 6 of the Hindu Succession Act, 1956 recognizes the concept of JHF governed under Mitakshara school along with the concepts of coparceners. By the amendment of Section 6, equal rights have been granted to daughters and sons to create more gender-equal laws. 
  • Section 6 of the Hindu Succession Act, 1956 outlines devolution of interest in coparcenary property. Prior to the 2005 amendment, the rule of survivorship was applicable wherein a male Hindu after his death would pass his share to the remaining coparceners. The only exception to this rule was that if the deceased left behind a female relative or male relative claiming through a female in Class I of schedule, in these cases the property would devolve by testamentary or intestate succession. After 2005, Section 6 was amended and the rule of survivorship was entirely scrapped and now succession takes place in accordance with testamentary succession or intestate succession rules.
  • Section 6(3) of the Hindu Succession Act, 1956 post-amendment introduces a legal fiction wherein it is assumed that the deceased’s property had already been partitioned right before his death, regardless of whether he could claim a partition in his lifetime or not. Once the share of the deceased has been ascertained his heirs including the children who have been conferred legitimacy under Section 16 will be entitled to their share.
  • The provisions of the Hindu Succession Act, 1956 and Hindu Marriage Act, 1955 work in harmony where a child who is conferred legitimacy under Section 16(1) and Section 16(2) will not be entitled to rights in the property of someone other than their parents in accordance with Section 16(3).

The Supreme Court concluded the judgement by ordering that the cases will now be listed before a two-judge bench in accordance with the assigned work for disposal. Many cases were pending due to this reference. The Registrar (Judicial) of the Supreme Court of India was directed to circulate a copy of the judgement to the Registrars (judicial) of all the High Courts. 

Critical analysis of Revanasiddappa and Ors. vs. Mallikarjun and Ors. (2011)

The judgments of 2011 and 2023 present contrasting interpretations of Section 16 of the Hindu Marriage Act, 1955. The 2011 judgement held that Section 16(3) has broad jurisdiction, and it allows for children born out of void and voidable marriages to inherit their parents’ coparcenary property. However, the 2023 judgement narrowed this interpretation and opined that Section 16(3)’s negative language restricts the inheritance rights and allows the children rights in the self-acquired property of the parents and no other person. 

On the one hand, Sections 16(1) and 16(2) aim to destigmatize and grant legislative legitimacy to these children so that they can hold a position equal to the legitimate children born out of valid marriage. This disparity undermines the social reforms and gender equality intended by the legislation. 

The principles and ideals of equality are not followed in this interpretation. It is unjust and unfair to punish a child based on the nature of their parent’s marriage, which was not in the child’s control. Due to the restrictions on inheritance rights, the 2023 judgement promotes inequality which is contrary to the spirit of this legislation and the notion of equality. 

Defects in the 2011 judgement

When referring to the judgement of 2011, it contains a degree of contradiction that needs clarification. On one hand, the two-judge bench explicitly noted that “the prohibition contained in Section 16(3) will apply to such children with respect to property of any person other than their parents.” It has also stated that “in case of joint family property such children will be entitled only to share in their parents property but they cannot claim their own right”. In the 2011 judgement, the Supreme Court opined that once the share of parents is decided, it will be treated as their absolute and self-acquired property, and there should be no children who do not have the right to it. 

The Supreme Court in 2011 observed that Parliament gave legitimacy to illegitimate children but it was also limited under Section 16(3). Despite this, the Supreme Court held that illegitimate children are at par with legitimate children when it comes to property rights, which is not the case. 

It is to be noted that the rationale of the Supreme Court in the 2011 judgement, where conferring legitimacy was seen as conferring all the property rights to illegitimate children, was not in consonance with Section 16(3). Section 16(3) mentions that the rights of a child are limited to the property of their parents and not any other person.

Current position

The Supreme Court in its 2023 judgement started by observing that when a Hindu dies after the 2005 amendment, their interest in JHF’s property will be inherited through a will or by intestate succession and not by the rule of survivorship. According to Section 6(3), the interest is determined as if the notional partition occurred immediately before their death. The share that would have been allotted to the deceased from this notional partition is disturbed in accordance with the General Rules of Succession given under Section 8 of the Hindu Succession Act, 1956. 

Then the property is distributed among Class I heirs in accordance with the rules enshrined under Section 10. Each surviving son, daughter, and mother of the deceased gets one share. The widow/widows, if there exists more than one, will get one share collectively. 

Now, a child given legislative legitimacy under Sub-sections 1 and 2 of Section 16 of the Hindu Marriage Act, 1955 is also entitled to a share in the deceased’s property. Since, Section 16(3) restricts the child from inheriting any property other than their parents, because this is a notional partition, it belongs to the deceased and hence makes it parents property and the bar under Section 16(3) won’t be applicable. This simply means that when a deceased dies intestate, the property is inherited equally by all children i.e. both legitimate and legislatively legitimate. The court opined that this process is not violative of provisions given under Section 16(3) of the Hindu Marriage Act, 1955. 

To understand the interpretation of Section 6 which mandates the assumption of notional partition, the court simplified it with the help of an example which has been briefed below for a thorough perusal.

The example given by the court states that there are 4 coparceners, namely, C1, C2, C3, and C4. Let’s say C2 died and left behind him a widow, one son, one daughter and one illegitimate child borne out of a null and void marriage in accordance with Section 11 of the Hindu Marriage Act, 1955. Now, we will assume that the partition of the coparcenary property among the brothers happened immediately before the death of C2 and in this partition, C2 got 1/4th of the share from the said coparcenary property. Within C2’s branch, the widow and all his children would get 1/3rd share each. C2’s share would be divided in the following manner:

C2’s widow will receive 1/3rd share out of 1/4th share of C2;

Validly born child will get 1/3rd share from the 1/4th share of C2;

The child born out of the null and void marriage under Section 11 would also be entitled to 1/3rd share out of the 1/4th share of C2. 

This would be the correct interpretation of Section 6 where notional partition happens right before the death of the coparcener and then the shares are distributed among the heirs of the deceased which also includes children born out of marriages covered under Section 16(1) and 16(2) who have been deemed legislatively legitimate.

Conclusion

In conclusion, the judgements in the case of Revanasiddappa and Ors. vs. Mallikarjun and Ors. (2011 & 2023) deals with the complexities of inheritance rights concerning the children born from void and voidable marriages. The Supreme Court analysed several legislations from the Hindu Marriage Act, 1955 to the Hindu Succession Act, 1956 and the Constitution of India and examined its intricate interconnection. It was concluded that the children born out of marriages deemed void and voidable under Sections 11 and 12 of the Hindu Marriage Act, 1955 are categorised illegitimate, and therefore, their rights pertaining to property and inheritance are limited. Section 16(3) provides that illegitimate children are only entitled to parents’ self-acquired property, and they do not have any right in JHF’s coparcenary property.  This was done keeping in mind a balance between the rights of children born from valid marriages and those from void/voidable marriages. It safeguards the property and inheritance rights of children from valid marriages and ensures that they are not interfered with. 

Frequently Asked Questions (FAQs)

What is the difference between JHF and coparcenary?

JHF is a larger institution as it includes all-male lineal descendants from a common ancestor, along with their wives and daughters. On the other hand, coparcenary is a narrow institution and only includes 3 generations of male lineal descendants from a common ancestor along with the last holder of the property. This view was amended in 2005 and daughters were also given coparcenary rights. No member can join the coparcenary by way of marriage. However, JHF can be joined through marriage. For example, wives of brothers will be part of brothers JHF upon their marriages. 

What is the Doctrine of Survivorship?

When a coparcenary property is devolved as per the rule of survivorship, if one joint owner passes away, their share in the property is devolved among the surviving coparceners which is in contrast to the concept of testamentary succession or rules of succession enshrined under the Hindu Succession Act, 1956 where the property is usually devolved to the heirs of the deceased. Under the Rule of Survivorship, the share of all the coparcenary members keeps fluctuating depending upon the births and deaths in the joint family. This doctrine resonates with the traditional idea of preservation and unified enjoyment of ancestral property. Although, it is to be noted that post-2005 the rule of survivorship is no longer applicable in India.

References

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