8888677771 | Children born out of void/voidable marriages have right on parent’s ancestral property: SC | India News

Children born out of void or voidable marriages can claim a right in their parent’s share of ancestral property, the Supreme Court ruled on Friday.

A three-judge Bench presided by Chief Justice of India D Y Chandrachud, however, clarified that they cannot claim rights in the ancestral property of anyone else in the Hindu Undivided Family (HUF) governed by Mitakshara Law but only in their parents’ share.

The Bench also comprising Justices J B Pardiwala and Manoj Misra referred to Section 16 (1) and 16(2) of the Hindu Marriage Act (HMA), 1995, which, it pointed out, confers legitimacy on children born out of void or voidable marriages.

Writing for the Bench, the CJI said “a child who is legitimate under” these sections “would, for the purposes of….the Hindu Succession Act (HSA), 1956, fall within the ambit of the explanation ‘related by legitimate kinship and cannot be regarded as an illegitimate child for the purposes of the provison.

Delving into the history of amendments made to the Hindu Succession Act, the court explained why such children can have rights only on their parent’s share of ancestral property and not in the property of the entire HUF.

It said while these amendments “built upon the structure of the HUF and calibrated it to facilitate the legislative intent of bringing about gender equality within the fold of the institution (by giving daughters coparcenary rights by birth in ancestral property)… but the legislature has not stipulated that a child whose legitimacy is protected by sub-section (1) or sub-section (2) of Section 16… would become a coparcener by birth.

On the other hand, the express language used in sub-section (3) of Section 16 of the HMA, 1955 is that the conferment of legitimacy shall not be construed as conferring any rights in or to the property of any person other than the parents.

The court pointed out that the very concept of a coparcener postulates the acquisition of an interest by birth” and “if a person born from a void or voidable marriage to whom legitimacy is conferred by sub-sections (1) or (2) of Section 16 were to have an interest by birth in an HUF governed by Mitakshara law, this would certainly affect the rights of others apart from the parents of the child. Holding that the consequence of legitimacy under sub-sections (1) or (2) of Section 16 is to place such an individual on an equal footing as a coparcener in the coparcenary would be contrary to the plain intendment of sub-section (3) of Section 16 of the HMA, 1955, which recognises rights to or in the property only of the parents… We would therefore have to hold that when an individual falls within the protective ambit of sub-section (1) or sub-section (2) of Section 16, they would be entitled to rights in or to the absolute property of the parents and no other person

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The judgment said “the provisions of the HSA, 1956 have to be harmonised with the mandate in Section 16(3) of the HMA, 1955, which indicates that a child who is conferred with legitimacy under sub-sections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents.

As to what would be the parental share in the ancestral property, the court said for this, the law mandates the assumption of a state of affairs immediately prior to the death of the coparcener namely, a partition of the coparcenary property between the deceased and other members of the coparcenary. Once the share of the deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs, including the children who have been conferred with legitimacy under Section 16 of the HMA 1955, will be entitled to their share in the property which would have been allotted to the deceased upon the notional partition, if it had taken place.

The Bench, which was answering a reference also said that “a large number of cases are likely to have remained pending before each high court due to its pendency and directed the Registrar (Judicial) of SC & to immediately circulate a copy of the judgment to the Registrars (Judicial) of all the High Courts who; it said “shall upon taking suitable directions from the chief justices on the administrative side, ensure that all pending cases involving the issues decided here are listed for hearing and disposal before the assigned Benches according to the rosters of work.

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