Introduction

A marriage affects the status of the children born from it. Children born of a valid marriage are legitimate and have all the rights and privileges which devolve upon them as legal heirs. The dissolution of the marriage of their parents does not affect their legitimacy.

• Section 16 of Hindu Marriage Act, 1955 (HMA) is a special provision which deals with the legitimacy of children both in void and voidable marriages.

Section 16 of HMA

• This section deals with the legitimacy of children of void and voidable marriages. It states that -

(1) Notwithstanding that a marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

Essential Elements of Section 16

• This section has no application where there was no solemnization of marriage at all.
• The children of void marriage are legitimate irrespective of the fact that a decree of nullity is granted or not under the HMA.
• If a voidable marriage is annulled under Section 12, the children begotten before the decree is made, shall be deemed legitimate.
• The children of void and voidable marriages are entitled to the property of their parents only.

Case Laws

• In Lakshmamma v. Thayamma (1974) case, the Andhra Pradesh High Court held that as per the provisions of Section 16 of HMA, the benefit of legitimacy has been conferred upon children of both void and voidable marriages.
• In Jinia Keotin v. Kumar Sitaram Manjhi (2003) case, the Supreme Court held that the mandate of Section 16(3) of HMA clearly expresses that there is no room to confer upon such children any right except the property of their parents.