(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 a child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 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 in capable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents].
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ADVERTISEMENTS:
Before the amendment when a marriage was void the illegitimate issue could claim a right of inheritance under s. 16 only if a decree for nullity had been passed but not otherwise. That was the interpretation given to that section in Thirumathi Ramayyammal v. Thirumathi Muthummal, AIR 1974 Mad. 321. The anomaly of such a view was pointed out by Rama Krishna, J, earlier in Gowri Ammal v. Thulnsi Animal, AIR 1962 Mad. 510 as follows : —
“It is obvious that the obtaining of a decree of nullity as a prerequisite to the grant of legitimacy to children under section 16 of our Act is anomalous, and can work a great deal of hardship in some cases. Void marriage under section 5 of the Act cover polygamous marriage, marriages within prohibited degrees and sapinda marriages.
Many couples who have married in contravention of these provisions would not have cared to go to the court in their life time to get the marriages annulled. The result is their children being illegitimate will be deprived of succession to property. In a suit after the life time of their parents, at the instance of a third party”.
ADVERTISEMENTS:
In Gowri Ammal v. Thulasi Ammal, AIR 1962 Mad. 510, the plaintiffs claimed partition with the defendants of the suit property belonging to the deceased Periaswami. The defendants were the first wife and son of Periaswami but the marriage being bigamous was void under s. 5. It was held that, therefore, the 1st plaintiff could not succeed in the suit.
The 2nd plaintiff, her daughter, could have succeeded if the declaration of nullity of marriage had been obtained during Periaswamy’s lifetime. As that was not done the 2nd plaintiff also was non-suited. This anomaly has now been removed. On the facts of this case under the amended s. 16, the 2nd plaintiff can succeed for she is to be regarded as a legitimate child even though the decree for nullity had not been obtained.
The result of s. 16 as amended in 1976 is to confer legitimacy on the child of a void marriage. In Shantaram v. Dagubhai, AIR 1987 Bom. 182, A married С while his first wife В was alive. A son D was born to С. В and her three daughters claimed 1/4th share each in the property left by A on his death.
The Bombay High Court held that D also was entitled to a share since under s. 16 he should be regarded as legitimate though the marriage of his mother was void. So the Plaintiffs (B and her three daughters) were entitled only to l/5th share each. So far a С the wife whose marriage was, void is concerned, she is entitled only to maintenance under s. 25 of the Act.
ADVERTISEMENTS:
The son of the void marriage can claim only inheritance to the separate property of his father. He cannot claim any right in the coparcenary property. Only a legitimate son can claim the joint-family property because he has a right by birth, (ibid)
The condition precedent for invoking s. 16 is that there must be either de jure or de facto marriage. Ramkali v. Mahila Shyamwati, AIR 2000 MP 288.
It is to be noted that the children born of bigamous marriage and legally valid marriage will have equal status. Rameshwari Devi v. State of Bihar, AIR 2000 SC 735: (2000) 2 SCC 431.