If the marriage between the parties is void, the children born out of such marriage are entitled to right in property of their parents.
BOMBAY HIGH COURT
Laxmibai Nagappa Matiwadar Vs Limbabai Nagappa Matiwadar
Second Appeal No. 202 of 1978. Date :- 8/12/1982
(1) For the purpose of the present appeal that arises out of a suit filed by the respondent for possession of three plots relying on her right to succeed to the interest of her husband Nagappa, few facts as found, are not in dispute. It was held by the first Appeal Court that Nagappa got the suit property, that is, Plot No. 228, by inheritance from his mother Nagwada, but the Appeal Court dismissed the suit with regard to the other plots, being Plots Nos. 230 and 231. There is no cross-appeal with regard to those plots. The first appeal Courts judgement decreed the suit of Limbabai with regard to the said Plot No. 228, holding that the present appellants would not have any right or interest therein because appellant No. 1 Laxmibais marriage with Nagappa was void. That marriage took place on May 24, 1955. The other appellants were born thereafter. It has been found that plaintiff Limbabai was married to Nagappa according to Hindu rites and was alive on that date. Applying the provisions of the Bombay Prevention of Hindu Bigamous Act, 1946, the first Appeal Court held that Hiralal and Ambubai, the son and the daughter born from Laximibai to Nagappa, because Laxmibais marriage was void, would be illegitimate children. Holding so, the first Appeal Court has decreed suit with regard to Plot No. 228 and has also made an order, directing delivery of possession of the said plot as well as inquiry into future mesne profits.
(2) These undisputed facts clearly go to show that as far as application of the law is concerned, there is an apparent error in the judgement under appeal. The marriage of Laxmibai and the rights and entitlement of Hiralal and Ambubai will have to be found on the basis of the Hindu Marriage Act, 1955 (hereinafter called “the Act”). It is not in dispute that this should be so because the Act came into force on May 18, 1955, while Laxmibai was married with Nagappa in May 24, 1955, that is, after the commencement of the Act. Undoubtedly, therefore, to that marriage the provisions of sec. 5(1) read with sec. 11 of the Act will have to be applied. So applied, it leaves no manner of doubt that plaintiff Limbabai, the first wife of Nagappa, being alive on the date of the marriage, the marriage of Laxmibai would be void and will have to be treated as such.
(3) The narrow question is, what is the impact of sec. 16(1) and sec. 16(3) of the Act read with the provisions of sec. 8 of the Hindu Succession Act, 1956 ?
(4) It was contended on behalf of the appellants that in view of the provisions of sec. 16, the children born from the void marriage do not lose their legitimate rights in the property, there being express recognition enacted by the terms of law. The contesting argument is that legitimacy u/s. 16 would not further clothe the other wifes illegitimate children with the status of “son” or “daughter” for the purpose of the Hindu Succession Act.
(5) The history of sec. 16 of the Hindu Marriage Act goes to show that it was enacted to confer status of legitimacy upon children born of void and voidable marriages. The Joint Committees report, with regard to the basis on which sec. 16 was enacted, clearly indicates that in its view in no case, the off-springs of void or voidable marriage be regarded as illegitimate.
(6) The present section which is in three parts, has been substituted for the original sec. 16 and sub-sec. (1), which opens with non obstante clause, declares, in no uncertain terms, that notwithstanding that such a marriage is null and void u/s. 11, the off-spring of such marriage shall be legitimate whether such child was 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 the Act and whether or not the marriage is held to be void otherwise than on a petition under the Act. The 1976 amendment and the substitution of sec. 16(1) in this manner beyond doubt takes away and eclipses the general rule that the off-spring of a marriage, which is null and void ipso jure, is illegitimate. That was common law doctrine, inevitable resulting in the effect of bastardising children. The same has been superseded and the matter is governed by the express declaration available in sec. 16(1) of the Act to the effect that though because of the statue the marriage would be void, that would not lead to the inevitable result of bastardising the children who are born out of such a void wedlock. Sub-section (3) of sec. 16 is no doubt, restrictive in character. It is however in furtherance of the legislative declaration available in sub-sec. (1) of sec. 16 of the Act. Though couched in negative language, the provision itself is in two parts, one excluding the entitlement of such child of possessing or acquiring rights in or to the property of any person and recognising such rights in his favour with regard to the property of his parents. The effect of legitimacy recognised by sec. 16 thus is to confer the rights in or to the property of the parents, the disablement or incapacity being enacted only with regard to the property of any other person. As far as the property of other person is concerned, sub-sec. (3) makes the position clear that the legitimacy conferred by sub-sec. (1) or (2) would not clothe such a child with the capacity of possessing or acquiring any right which it did not so possess by reason of its not being the legitimate child of its parents. Sec. 16 thus enacts a complete Code with regard to the off-springs of void or voidable marriages. Firstly, it declares the status of such a child being one as legitimate. Secondly, it recognises rights in the property of the parents. The provision itself thus is for the benefit of the children and will have to be applied in full so as to confer status with interest in property. This provision thus removes the disability of such children as far as the property of their parents is concerned. Reading together, it follows that Hiralal and Ambubai would be the legitimate children notwithstanding the fact that Laxmibais marriage is void, and they would have rights in or to the property left by Nagappa or Laxmibai.
(7) A brief reference then to the Hindu Succession Act is necessary, for the succession opened after that Act came into force. Nagappa, admittedly, died on December 31, 1969. As stated earlier, the suit Plot No. 228 is the property which he inherited from his mother and was his property at the date of his death. To the succession of that property, Nagappa having died intestate, the rules laid down by sec. 8 of the Hindu Succession Act will have to be applied. Under Clause (a) of sec. 8 thereof, the heirs specified in class I of the Schedule would succeed to Nagappas property Class I of the Schedule appended to the Hindu Succession Act speaks of “son”, “daughter”, “widow”. Laxmibai whose marriage is void, could not be treated as widow. Limbabai, whose marriage was valid and was alive, would answer the term “widow”. The question is whether the legitimacy conferred by reason of sec. 16 of the Act would clothe Hiralal and Ambubai with the status of “son” and “daughter”? The Hindu Succession Act itself does not define the words “son” or “daughter”. They are the persons who are classed as heirs and the terms “heir” means any person male or female, who is entitled to succeed to the property of an intestate under the Hindu Succession Act [sec. 3(f)]. The terms “son” and “daughter”, which are included as the persons entitled to succeed as heirs in Class I, are the descriptive natural terms indicating off-springs having only the sex difference is “son” indication the male off-spring and “daughter” indicating the female off-spring. It is well-settled rule of interpretation that if the statue uses the natural words, then full effect should be given to the same. What was intended by the Law of Succession was to confer the rights of succession upon the persons, who answer the terms and descriptions available in Class I. To be covered by that class and to be the son or daughter, it has to be shown that the person was born to the Hindu who has died intestate. If the description is answered, then unless there is anything contrary to disqualify such an heir mentioned expressly as entitled to succeed, it will not be possible to exclude such person from the rights of succession.
(8) As far as Hiralal and Ambubai are concerned, it is nobodys case that they do not answer the natural descriptions of “son” and “daughter”. If they answer and if their father died intestate, notwithstanding the fact that they were the off-springs of the void marriage, they would be covered by the definition of the word “heir” available in sec. 3(f) of the Hindu Succession Act. The Law of Succession is principally a law that recognises a class of persons who can succeed to the deceased when the succession opens. It is both a law of status as well as made in recognition of rights in or to the property of the deceased; In the entire body of the Hindu Succession Act, there exists no disqualification with regard to the off-springs or the children born out of void marriages. A group of sections that lays down specific disqualifications is available only in the provisions of sections 24, 25, 26 and 28. These sections do not in any manner, exclude children born out of a void marriage. The grounds of exclusion from the succession under the Hindu Succession Act having been specified, like remarriage in cases falling u/s. 24, murder in cases falling u/s. 25, conversion in cases falling u/s. 26. It is not possible to find a new head for the purpose of disqualifying the otherwise illegitimate children recognised to be legitimate by virtue of the declaration available in sec. 16 of the Act. The policy and principles underlying the condification of Hindu Law clearly go to show that the Legislature intended to avoid the effects of bastardisation and to clothe the children, notwithstanding the fact of the marriages of their parents being void with the status of legitimacy and with conferring rights in the property of their parents. Such rights would include, by very intendment, rights of succession to the property of the parents. It will be fair, therefore, to hold that there being no disqualification enacted or any incapacity indicated by the provisions of the Hindu Succession Act as far as the succession to Nagappa and rights in his property are concerned. Hiralal and Ambubai would be the children covered by class I and would thus be the heirs of Nagappa along with his widow Limbabai.
(9) As a result of this finding the provisions of sec. 10 of Hindu Succession Act would indicate that Limbabai would be entitled to have one-half share, whole Hiralal and Ambubai together would be entitled to one-half share. Laxmibai would not be entitled to any share.
(10) With regard to the Suit Plot No. 228, therefore, plaintiff limbabai would be entitled to a decree to the extent of one-half share, the remaining one-half going to the two children.
(11) This being the position, the present appeal will have to be allowed. The decree under appeal is, therefore, set aside and in its place, the following decree is made :—
It is hereby declared that the plaintiff has one-half share in the suit property, being Plot No. 228, and she is entitled to partition and possession of her share to that extent. The rest of the claim of the plaintiff is dismissed.”
Though the appeal is thus allowed to the above extent, under the circumstances, the parties are directed to bear their own costs throughout.