Legitimacy of children born out of void and voidable marriages

LEGITIMACY OF THE CHILDREN BORN OUT OF VOID MARRIAGES AND VOIDABLE MARRIAGES

The status of children, whether legitimate or illegitimate, plays an important role in their life. It actually defines the way of their life. The rights they confer, the authorization they have, the liability they possess, it all flows in the conscience of their status. Generally, it has been said that children born out of valid marriages are legitimate and those who are born out of no valid marriage or extra marital affairs or invalid sexual relationships are considered to be the illegitimate ones. The society and personal laws had already created a line of distinction between both, back in the history. That distinction generally means hardships, no social acceptance, discrimination, disparity etc. For the illegitimate children, on the other hand, legitimate children enjoys the rightful status in the society, authoritative for certain things, rightful succession etc.

But this is not the truth, all the children born out of no valid marriage or void marriage or voidable marriage are not illegitimate. We will study about this in detail in the coming article but before that one needs to understand the meaning of legitimacy, void marriages and voidable marriages.

• What is legitimacy of a child?

Legitimacy of a child can be defined as the status that he or she acquires when they are born out of valid marriage or born out of a marriage which fulfills the conditions of Hindu marriage given under section 5 of Hindu Marriage Act, 1955 or in other words, the child born to the parents who are legally married to each other and the child conceived before the divorce of them. Status of legitimacy defines the rights and liabilities of the children. It gives the rightful status of children in the society. It gives the title and the surname of the father to the child. It gives the right of inheritance to the child in the father’s property and ancestral property.

• Void marriages and legitimacy of children born out of it-

Void marriages– A void marriage is not a marriage, irrespective of the fact that all the rites and ceremonies took place. In the simpler terms, void marriage is a marriage that took place between two such person who doesn’t have to capacity to marriage or the marriage is in the contravention of clause (1), (4) and (5) of section 5 of Hindu Marriage Act,1955. A void marriage is void-ab-initio, which means it is void from the beginning, i.e. it never existed. Void marriages do not require a decree to get it annulled, as it never existed, so even if the court passes a decree of annulment it just declares it null and void, do not render it null and void. Void marriages do not give rise to any status of husband and wife, do not create mutual rights and obligations. Parties to the void marriage can remarry, as marriage never existed, so they wouldn’t be charged with the offence of bigamy.

Legitimacy of children- According to the provisions given under the section 16  of Hindu Marriage Act, 1955 and Special Marriage Act, children born out of void marriage, irrespective of being declared annulled/void by court or not, shall be treated as legitimate children, but they will inherit the property of their parents’ only, not the ancestral property. They do not have coparcenary rights.

• Voidable marriages and legitimacy of children born out of it

Voidable marriages- A voidable marriage is a valid marriage until it is avoided by the either party, or in other words, a voidable marriage is a marriage that can be avoided at the petition of declaring it void by either party to the marriage, and if the parties doesn’t file the petition the marriage remains valid. As long as the voidable marriage is not avoided, all the consequences of the valid marriage flow from it. Parties to the unavoided voidable marriage can not marry to the other person, they would be charged with the offence of bigamy if they do so, as the consequences of valid marriage flows from unavoided voidable marriage.

Legitimacy of children- According to the provisions given under the section 16 of Hindu Marriage Act, 1955 and Special Marriage Act, the legitimacy of the children born out of voidable marriages has certain cases, which are as follows:-

CASE 1- CHILDREN BEGOTTEN BEFORE THE DECREE IS MADE

Children begotten or conceived before the decree of nullity is made, would be legitimate as if the decree would have dissolved rather than annulling the marriage.

CASE 2- CHILDREN OF UNANNULLED VOIDABLE MARRIAGE

Children born out of such voidable marriage which is not rendered void/annulled/avoided by the either party to the marriage would be legitimate in the same way that of children born out of valid marriage.

CASE 3- CHILDREN OF ANNULLED VOID MARRIAGE

Children born out of such voidable marriage that has been rendered void/ annulled/unavoided by the either party to the marriage would be legitimate, but they can only inherit the property of their parents only, not others. No coparcenary right is given to them.

Prior to the commencement of Hindu Marriage Act, 1955 the parties to the void and voidable marriage doesn’t have any remedy to render that marriage void or avoid that. But after the commencement of the said act, the remedy to get rid of such marriages came in existence. Section 11 and Section 12 empowers such parties to the void and voidable marriages to get them annulled. The said act provided the set of provisions which declare the marriage void and voidable, those are in contravention of the section 5 of the act. The enactment of the Amendment Act, 1976 empowered the children born out of such marriages. It gave the legitimate status to the children born out of void and voidable marriages. This enactment stood up for the rights of the children as being born out of such marriages is not their fault, but the ultimate price has to be paid by them only. They are the only ones who suffer from all the disparity and discrimination that society has created. It has been rightfully said by Leon R. Yankwich, “There are no illegitimate children, only illegitimate parents”.

Author: Riddhi Agrawal,
Amity University, Gwalior and 2nd year