# CASE DETAILS REVANASIDDAPPA & ANR v. MALLIKARJUN & ORS

- **Citation:** 2023 INSC 783
- **Court:** Supreme Court of India
- **Decided:** 2023-09-01
- **Case number:** Civil Appeal No. 2844 of 2011
- **Bench:** Dr. Dhananjaya Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-revanasiddappa-anr-v-mallikarjun-ors-36654
- **Pages:** 54

## Headnote

Issue for consideration: Whether a child who is conferred with
legislative legitimacy u/s. 16(1) or 16(2) is, by reason of s. 16(3), of the
Hindu Succession Act, 1956 entitled to the ancestral/coparcenary property
of the parents or is the child merely entitled to the self-earned/separate
property of the parents.
Hindu Marriage Act, 1955 - s. 16 - Children of void and voidable
marriages - Conferment of legitimacy - Inheritance rights of legitimised
children:
Held: While conferring legitimacy in terms of s. 16(1) on a child born
from a marriage which is void u/s. 11, and under s. 16(2) to a child born
from a voidable marriage which has been annulled by a decree of nullity
u/s. 12, it is stipulated in s. 16(3) that such a child will have rights to or in
the property of the parents and not in the property of any other person - ss.
11, 12. [Para 54(iii)]
Hindu Succession Act 1956 - s. 3(1)(j) - 'related by legitimate
kinship' - Construction of the provisions of s. 3(1)(j) including the
proviso:
Held: Legitimacy conferred by s. 16 of the HMA 1955 on a child born
from a void or, voidable marriage has to be read into the provisions of the
HSA 1956 - Child who is legitimate under sub-section (1) or sub-section
(2) of s.16 of the HMA would, for the purposes of s. 3(1)(j), fall within
the ambit of the explanation 'related by legitimate kinship' and cannot be
321
regarded as an 'illegitimate child' for the purposes of the proviso - Hindu
Marriage Act, 1955 - s. 16. [Para 54(iv)]
Hindu Succession Act 1956 - s. 6 - Devolution of interest in
coparcenary property - Substitution of s. 6 by Act 39 of 2005 - Eff ect:
Held: By the substitution of s. 6, equal rights have been granted to
daughters, in the same manner as sons as indicated by sub-section (1) of s.
6 - In terms of sub-section (3) of s. 6 as amended, on a Hindu dying after
the commencement of the Amending Act of 2005 his interest in the property
of a Joint Hindu family governed by the Mitakshara law will devolve by
testamentary or intestate succession, and not by survivorship - Said rule
of devolution has been made the norm - Prior to the substitution of s. 6
by the Amending Act of 2005, s. 6 stipulated the devolution of interest in
a Mitakshara coparcenary property of a male Hindu by survivorship on
the surviving members of the coparcenary - Exception to devolution by
survivorship was where the deceased had left surviving a female relative
specifi ed in Class I of the Schedule or a male relative in Class I claiming
through a female relative, in which event the interest of the deceased in a
Mitakshara coparcenary property would devolve by testamentary or intestate
succession. [Para 54(v), (vi)]
Hindu Succession Act 1956 - s. 6 - Devolution of interest in
coparcenary property - Ascertainment of share on basis of notional
partition:
Held: While providing for the devolution of the interest of a Hindu in
the property of a Joint Hindu family governed by Mitakshara law, dying after
the commencement of the Amending Act of 2005 by testamentary or intestate
succession, s.6(3) lays down a legal fi ction namely that the coparcenary
property shall be deemed to have been divided as if a partition had taken
place - For ascertaining the interest of a deceased Hindu Mitakshara
coparcener, the law mandates the assumption of a state of aff airs immediately
prior to the death of the coparcener - 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
conferred with legitimacy u/s.16 of the HMA, would 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. [Para 54(viii), (ix)]
REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS.
322
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[2023] 14 S.C.R.
Hindu Succession Act 1956 - s. 6(3) - Hindu Marriage Act, 1955 - s.
16 - s. 16(3) of the HMA 1955 and s. 6(3) of the HSA 1956, i

## Text

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[2023] 14 S.C.R. 320 : 2023 INSC 783
320
CASE DETAILS
REVANASIDDAPPA & ANR.
v.
MALLIKARJUN & ORS.
(Civil Appeal No. 2844 of 2011)
SEPTEMBER 01, 2023
[DR. DHANANJAYA Y. CHANDRACHUD, CJI,
J.B. PARDIWALA AND MANOJ MISRA, JJ.]
HEADNOTES
Issue for consideration: Whether a child who is conferred with
legislative legitimacy u/s. 16(1) or 16(2) is, by reason of s. 16(3), of the
Hindu Succession Act, 1956 entitled to the ancestral/coparcenary property
of the parents or is the child merely entitled to the self-earned/separate
property of the parents.
Hindu Marriage Act, 1955 - s. 16 - Children of void and voidable
marriages - Conferment of legitimacy - Inheritance rights of legitimised
children:
Held: While conferring legitimacy in terms of s. 16(1) on a child born
from a marriage which is void u/s. 11, and under s. 16(2) to a child born
from a voidable marriage which has been annulled by a decree of nullity
u/s. 12, it is stipulated in s. 16(3) that such a child will have rights to or in
the property of the parents and not in the property of any other person - ss.
11, 12. [Para 54(iii)]
Hindu Succession Act 1956 - s. 3(1)(j) - 'related by legitimate
kinship' - Construction of the provisions of s. 3(1)(j) including the
proviso:
Held: Legitimacy conferred by s. 16 of the HMA 1955 on a child born
from a void or, voidable marriage has to be read into the provisions of the
HSA 1956 - Child who is legitimate under sub-section (1) or sub-section
(2) of s.16 of the HMA would, for the purposes of s. 3(1)(j), fall within
the ambit of the explanation 'related by legitimate kinship' and cannot be
321
regarded as an 'illegitimate child' for the purposes of the proviso - Hindu
Marriage Act, 1955 - s. 16. [Para 54(iv)]
Hindu Succession Act 1956 - s. 6 - Devolution of interest in
coparcenary property - Substitution of s. 6 by Act 39 of 2005 - Eff ect:
Held: By the substitution of s. 6, equal rights have been granted to
daughters, in the same manner as sons as indicated by sub-section (1) of s.
6 - In terms of sub-section (3) of s. 6 as amended, on a Hindu dying after
the commencement of the Amending Act of 2005 his interest in the property
of a Joint Hindu family governed by the Mitakshara law will devolve by
testamentary or intestate succession, and not by survivorship - Said rule
of devolution has been made the norm - Prior to the substitution of s. 6
by the Amending Act of 2005, s. 6 stipulated the devolution of interest in
a Mitakshara coparcenary property of a male Hindu by survivorship on
the surviving members of the coparcenary - Exception to devolution by
survivorship was where the deceased had left surviving a female relative
specifi ed in Class I of the Schedule or a male relative in Class I claiming
through a female relative, in which event the interest of the deceased in a
Mitakshara coparcenary property would devolve by testamentary or intestate
succession. [Para 54(v), (vi)]
Hindu Succession Act 1956 - s. 6 - Devolution of interest in
coparcenary property - Ascertainment of share on basis of notional
partition:
Held: While providing for the devolution of the interest of a Hindu in
the property of a Joint Hindu family governed by Mitakshara law, dying after
the commencement of the Amending Act of 2005 by testamentary or intestate
succession, s.6(3) lays down a legal fi ction namely that the coparcenary
property shall be deemed to have been divided as if a partition had taken
place - For ascertaining the interest of a deceased Hindu Mitakshara
coparcener, the law mandates the assumption of a state of aff airs immediately
prior to the death of the coparcener - 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
conferred with legitimacy u/s.16 of the HMA, would 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. [Para 54(viii), (ix)]
REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS.
322
SUPREME COURT REPORTS
[2023] 14 S.C.R.
Hindu Succession Act 1956 - s. 6(3) - Hindu Marriage Act, 1955 - s.
16 - s. 16(3) of the HMA 1955 and s. 6(3) of the HSA 1956, if inconsistent:
Held: There is no inconsistency between s. 16(3) of the HMA 1955
and s. 6(3) of the HSA 1956 - Provisions of the HSA 1956 have to be
harmonized with the mandate in s. 16(3) of the HMA 1955 which indicates
that a child who is conferred with legitimacy under sub-sections (1) and (2)
of s. 16, will not be entitled to rights in or to the property of any person other
than the parents - Property of the parent, where the parent had an interest in
the property of a Joint Hindu family governed under the Mitakshara law has
to be ascertained in terms of the Explanation to sub-section (3) [Para 54(x)]
Judgments/orders - Two judge Bench of this Court in its referring
judgment Revanasiddappa v. Mallikarjun held that the illegitimate
children will have right in the coparcenary property of their parents,
self acquired or ancestral - Reconsideration:
Held: There is a degree of contradiction in the referring judgment
which needs to be clarifi ed and set at rest - Thus, reference answered
holding that the children born out of the void or voidable marriage entitled
to share in the property of their deceased parents and not in the property of
any other person. [Para 53]
Mitakshara Law - Joint Hindu family - Description of:
Held: It comprises of male members who are lineal descendants from
a common male ancestor, together with their mothers, wives or widows and
unmarried daughters - Joint Hindu family has been described as 'a larger
body' consisting of a group of persons united by sapindaship or family
relationship. [Para 21]
Mitakshara Law - Hindu coparcenary - Composition of:
Held: It comprises of a propositus and three lineal descendants - Hindu
coparcenary is a body which is narrower than a Hindu Undivided Family
- Before 2005, it included only sons, grandsons and great-grandsons who
were holders of joint property - Hallmark of a coparcenary is that a lineal
male descendent up to the third generation would acquire an independent
323
right of ownership by birth and the interest of a deceased member would
lapse on his death and merge in the coparcenary property. [Paras 22-25]
Hindu Succession Act, 1956 - s. 6 - Devolution of interest in
coparcenary property in a joint Hindu family governed by Mitakshara
law - Position prior to its substitution by Act 39 of 2005 and after
substitution of s.6 by Act 39 of 2005 - Coparcenary rights on daughters
in Joint Hindu families governed by Mitakshara law - Explained. [Paras
26-41]
Mitakshara law - Joint Hindu families governed thereunder -
Provisions of the HSA 1956 in relation to Joint Hindu families of that
class - Interpretation of - Hindu Succession Act, 1956. [Para 55]
LIST OF CITATIONS AND OTHER REFERENCES
Jinia Keotin v Kumar Sitaram Manjhi (2003) 1 SCC 730: [2002] 5
Suppl. SCR 689; Neelamma v Sarojamma (2006) 9 SCC 612; Bharatha
Matha v R Vijaya Renganathan (2010) 11 SCC 483: [2010] 7 SCR 154;
Revanasiddappa v Mallikarjun (2011) 11 SCC 1: [2011] 4 SCR 675;
Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt) v K Devi
(1996) 4 SCC 76: [1996] 2 Suppl. SCR 1; Ashwani Kumar v. Union of
India (2020) 13 SCC 585: [2019] 12 SCR 30; Sushil Kumar v. Ram Prakash
(1988) 2 SCC 77: [1988] 2 SCR 623; Smt Sitabai v. Ramchandra (1969)
2 SCC 544: [1970] 2 SCR 1; Gowli Buddanna v. CIT, Mysore, Bangalore
AIR 1966 SC 1523: [1966] SCR 224; Surjit Lal Chhabda v. Commissioner
of Income Tax Bombay (1976) 3 SCC 142: [1976] 2 SCR 164; Vineeta
Sharma v. Rakesh Sharma (2020) 9 SCC 1: [2020] 10 SCR 135; State Bank
of India v. Ghamandi Ram (1969) 2 SCC 33: [1969] 3 SCR 681; Controller
of Estate Duty, Madras v. Alladi Kuppuswamy (1977) 3 SCC 385: [1977]
3 SCR 721; State of Maharashtra v. Narayan Rao Sham Rao Deshmukh
(1985) 2 SCC 321: [1985] 3 SCR 358; Vellikannu v. R Singaperumal
(2005) 6 SCC 622: [2005] 1 Suppl. SCR 160; Rohit Chauhan v. Surinder
Singh (2013) 9 SCC 419: [2013] 7 SCR 897; Katama Natchier v. Rajah
of Shivagunga 1863 SCC OnLine PC 11; Gurupad Khandappa v. Hirabai
Khandappa Magdum (1978) 3 SCC 383: [1978] 3 SCR 761; Shantaram
Tukaram Patil v. Dagubai Tukaram Patil 1987 SCC OnLine Bom 9: 1987
Mah LJ 179; Bhaurao Shankar Lokhande Vs State of Maharashtra (1965)
2 SCR 837 - referred to.
REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS.
324
SUPREME COURT REPORTS
[2023] 14 S.C.R.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2844 of 2011.
From the Judgment and Order dated 07.11.2008 of the High Court of
Karnataka, Circuit Bench at Gulbarga in R.S.A. No.550 of 2006.
With
Civil Appeal No. 2312 of 2021, SLP (C) Nos. 23397-98 of 2018, Civil
Appeal No.7318 of 2014, SLP (C) No.81 of 2016, Civil Appeal No.4398 of
2019, SLP (C) Nos.14176-77 of 2016, 27834 of 2017 and 1573-74 of 2021
Appearances:
Ms. Kiran Suri, TSR Venkataramana Sr. Advs., Ms. Manju Jetley,
Vivek Solshe, Amol B. Karande, Raj Saheb Patil, Narendar Rao Thaneer,
Varun Solshe, Shivangi Singh, Aditya Yadav, Ms. Palak Mathur, Satyajit A
Desai, Siddharth Gautam, Abhinav K. Mutyalwar, Gajanan N Tirthkar, Vijay
Raj Singh Chouhan, Ms. Anagha S. Desai, Sudhanshu S. Choudhari, Ms.
Jaikriti S. Jadeja, Amaan Shreyas, Mahesh P. Shinde, Ms. Rucha A. Pande,
M. Veeraragavan, Yashaswini Chauhan, S.J. Amith, Ms. Aishwarya Kumar,
Ms. Vidushi Garg, Purvesh Buttan, Dr. (Mrs.) Vipin Gupta, Ranbir Singh
Yadav, Prateek Yadav, Puran Mal Saini, Ms. Anzu K Varkey, Ritesh Patil,
Yogesh Yadav, Pati Raj Yadav, Mohammed Shahrukh, R. Sathish, G S Y,
Ms. Janaki Devi, Abhay Singh Yadav, Nikhil Majithia, Neeleshwar Pavani,
Harshit Agarwal, Aasheesh Gupta, Kamal Kumar, Advs. for the Appellants.
K. Radhakrishna, Ms. V Mohana, Vivek Chib, A.I.S. Cheema, Sr.
Advs., Mrs. Rajani. K. Prasad, B. Krishna Prasad, Ms. Abha R. Sharma,
Apoorv Kurup, Rohit Anil Rathi, Vijay Kumar Panpalia, Chandra Prakash,
P.B. Suresh, Vipin Nair, Arindam Ghosh, Karthik Jayashankar, Anshumaan
Bahadur, P. B. Sashaankh, Abid Ali Beeran P, Ms. Bhavya Pande, Ms.
Sneha Botwe, Ms. Yashika Sharma, B Ragunath, Ms Vishnushankar,
Mrs. Nc Kavitha, Ms. Unnati Jhujhunwala, Ms. Mansi Gupta, Vijay
Kumar, S. Rajappa, V Prabhakar, Ms. Jyoti Parashar, Nj Ramchandar, R
Gowrishankar, Avinash B. Amarnath, Mukesh K. Giri, Nishant Ramakantrao
Katneshwarkar, Samrat Krishnarao Shinde, Kunal Cheema, Ms. Ruchita
Kunal Cheema, Shivam Dube, Raghav Deshpande, Shirish K. Deshpande,
325
Ms. Rucha Pravin Mandlik, Ms. Harsimran Kaur Rai, Mohit Gautam, Apoorv
Sharma, Shanthkumar V Mahale, Rajesh Mahale, Sriram P., Ms. Jyotika
Kalra, Joydeep Mukherjee, Ms. Annwesha Deb, Lakshmi Raman Singh, H.
Chandra Sekhar, Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
DR. DHANANJAYA Y CHANDRACHUD, CJI
Table of Contents
A.
The reference to the three Judge Bench ...................................3
B.
Statutory conferment of legitimacy ..........................................6
C.
Rights in or to the property of parents ....................................14
D.
Issues in the reference ............................................................16
E.
Submissions: ...........................................................................17
F.
Joint Hindu family and coparcenary under Mitakshara .........23
G.
Hindu Succession Act 1956 ....................................................27
H.
Property of the Parents ...........................................................39
I.
Legitimacy and Coparcenary ..................................................46
J.
The referring judgment revisited: ...........................................51
K.
Conclusion ..............................................................................55
A. The reference to the three Judge Bench
1. A child born to parents whose marriage is null and void under
Section 11 of the Hindu Marriage Act 19551 is declared to "be legitimate"
by Section 16 (1) if a child "of such marriage... would have been legitimate
if the marriage had been valid." Likewise, where a decree of nullity has
1
The Hindu Marriage Act 1955 (HMA)
REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS.
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SUPREME COURT REPORTS
[2023] 14 S.C.R.
been granted under Section 12 in respect of a voidable marriage, a child
"begotten or conceived before the decree is made" is "deemed to be their
legitimate child" if such a child would have been the legitimate child of the
parties to the marriage if the marriage had been dissolved instead of being
annulled2. Section 16(3) enunciates that a child of a marriage that is null or
void or which is annulled by a decree of nullity shall not have "any rights
in or to the property of any person, other than the parents" where but for the
enactment of the legislation such a child would be incapable of possessing
or acquiring any such rights "by reason of his not being the legitimate child
of his parents".
2. Several decisions of this Court have considered the nature of the
property rights conferred on children of parents whose marriage is either void
or in respect of which a decree of nullity has been passed under Section 12.
In Jinia Keotin v Kumar Sitaram Manjhi3, a two judge Bench held that
merely because the children born out of a void and illegal marriage have been
specifi cally safeguarded under Section 16, they ought not to be treated on
par with children born from a lawful marriage for the purpose of inheritance
of the ancestral property of the parents4. This Court held that in view of the
express mandate of the legislature in Section 16(3), a child born from a void
marriage or a voidable marriage in respect of which a decree of nullity has
been passed would have no right to inheritance in respect of ancestral or
coparcenary property. The decision in Jinia Keotin was followed by two
judge benches in Neelamma v Sarojamma5and later in Bharatha Matha
v R Vijaya Renganathan6. After adverting to the two earlier decisions, this
Court held that "a child born of void or voidable marriage is not entitled to
claim inheritance in ancestral coparcenary property but is entitled only to
claim a share in self-acquired properties."7
3. The correctness of the decisions in Jinia Keotin, Neelamma,
2
Section 16(2) of HMA
3
(2003) 1 SCC 730
4
At page 732, para 2
5
(2006) 9 SCC 612
6
(2010) 11 SCC 483
7
At page 513, para 29
327
and Bharatha Matha has been doubted by a two judge Bench in
Revanasiddappa v Mallikarjun8. In its order referring the correctness of
the earlier decisions to a larger bench, the Court has premised its doubt on
the following basis:
(i)
Section 16(3) does not qualify the expression 'property' either
with 'ancestral or self-acquired' property. It sets out an express
mandate that such children are only entitled to the property of
their parents and not of any other relations;
(ii)
Once children born from a void marriage (or a voidable
marriage which has been declared to be nullity) are declared
to be legitimate by sub-sections (1) and (2) of Section 16,
they cannot be discriminated against andwill be onpar with
other legitimate children for the purpose of all the rights in the
property of their parents, both self-acquired and ancestral9;
(iii)
Section 16 was amended by Act 68 of 1976. As a consequence
of the amendment, the common law view that children of a
marriage which is void or voidable 'are illegitimate' 'ipso jure'
has to change completely10. The law has a socially benefi cial
purpose of removing the stigma of illegitimacy faced by
children of such marriages, since the children themselves are
innocent;
(iv)
The benefi t of Section 16 (3) is available only when there is
a marriage but the marriage is either void or voidable in view
of the provisions of the legislation;
(v)
In the case of joint family property, children born from a void
or voidable marriage will only be entitled to a share in their
parents' property but not in their own right:
"38...Logically, on the partition of an ancestral property, the
property falling in the share of the parents of such children
is regarded as their self-acquired and absolute property.
8
(2011) 11 SCC 1
9
At para 29 page 9
10 At para 36 page 10
REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, CJI]
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SUPREME COURT REPORTS
[2023] 14 S.C.R.
In view of the amendment, we see no reason why such
children will have no share in such property since such
children are equated under the amended law with legitimate
off spring of valid marriage. The only limitation even after
the amendment seems to be that during the lifetime of their
parents such children cannot ask for partition but they can
exercise this right only after the death of their parents."
(vi)
While the relationship between the parents may not be
sanctioned by law, the birth of a child in such a relationship
has to be viewed independently of such relationship.
The interpretation of Section 16(3) must be based on the
constitutional values of equality of status and opportunity as
well as individual dignity;
(vii)
A child born in such a relationship is innocent and is entitled to
all the rights which are given to other children born in a valid
marriage subject to the limitation that the right is confi ned to
the property of the parents; and
(viii)
Section 16(3) as amended does not impose any restriction on
the property rights of the children born of a void or voidable
marriage except limiting it to the property of their parents.
Hence, such children will have a right to whatever becomes the
property of their parents, whether self-acquired or ancestral.
Thus, the present reference arises before this three judge Bench.
B. Statutory conferment of legitimacy
4. Section 5 of the HMA 1955 specifi es, as the marginal notes indicates,
'Conditions for a Hindu Marriage'11.
11 5. Conditions for a Hindu marriage.- A marriage may be solemnized between any two
Hindus, if the following conditions are fulfi lled, namely:-
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party-
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suff ering from mental disorder of
such a kind or to such an extent as to be unfi t for marriage and the procreation of
329
5. Section 11 stipulates that a marriage solemnised after the
commencement of the Act shall be null and void and be so declared by
a decree of nullity if (i) either party has a spouse living at the time of the
marriage; (ii) parties are within the degrees of prohibited relationship except
where a custom or usage governing them permits of a marriage; and (iii)
parties are sapinda of each other, unless a custom or usage governing them
permits of a marriage.12
6. Section 12 provides for the circumstances in which a marriage shall
be voidable and may be annulled by a decree of nullity.13
children; or
(c) has been subject to recurrent attacks of insanity;
(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of
eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or
usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of
them permits of a marriage between the two.
12 11. Void marriages.- Any marriage solemnised after the commencement of this Act
shall be null and void and may, on a petition presented by either party thereto against
the other party, be so declared by a decree of nullity if it contravenes any one of the
conditions specifi ed in clauses (i),(iv) and (v) of section 5.
13 12. Voidable marriages. - (1) Any marriage solemnized, whether before or after the
commencement of this Act, shall be voidable and may be annulled by a decree of
nullity on any of the following grounds, namely-
(a) that the marriage has not been consummated owing to the impotence of the
respondent; or
(b) that the marriage is in contravention of the condition specifi ed in clause (ii) of
Section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage
of the petitioner was required under Section 5 as it stood immediately before the
commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)
the consent of such guardian was obtained by force or by fraud as to the nature of the
ceremony or as to any material fact or circumstance concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other
than the petitioner.
(2) Notwithstanding anything contained in sub-section (1), no petition for annulling
a marriage-
(a) on the ground specifi ed in clause (c) of sub-section (1), shall be entertained if-
(i) the petition presented more than one year after the force had ceased to operate
or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the
marriage as husband or wife after the force had ceased to operate or, as the case
REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, CJI]
330
SUPREME COURT REPORTS
[2023] 14 S.C.R.
7. Section 16 as it was originally enacted provided as follows:
"16. Legitimacy of children of void and voidable marriages.-Where
a decree of nullity is granted in respect of any marriage under Section
11 or 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 it had been dissolved instead of having been declared null
and void or annulled by a decree of nullity shall be deemed to be their
legitimate child notwithstanding the decree of nullity:
Provided that nothing contained in this section shall be construed as
conferring upon any child of a marriage which is declared null and
void or annulled by a decree of nullity 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."
8. While Section 16, as originally enacted, protected the legitimacy of
children of void and voidable marriages, its applicability was conditioned
by four requirements namely:
(i)
The existence of a marriage;
(ii) The marriage should be void under Section 11 or voidable under
Section 12;
(iii) There must be a decree annulling the marriage under Section 11
or Section 12; and
(iv) The child should have been begotten or conceived before the
may be, the fraud had been discovered;
(b) on the ground specifi ed in clause (d) of sub-section (1) shall be entertained unless
the court is satisfi ed-
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnized
before the commencement of this Act within one year of such commencement and
in the case of marriages solemnized after such commencement within one year
from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place
since the discovery by the petitioner of the existence of the said ground."
331
decree was made.
9. The manner in which Section 16 was drafted gave rise to two
consequences: fi rstly, the status of legitimacy granted to a child born from
a void or voidable marriage was conditional upon the marriage being
annulled by a decree of annulment. Absent a decree of annulment, the child
would continue to be 'illegitimate'. If the parties had not moved a court
and obtained a decree, the protection under Section 16 was not available.
Secondly, children born from void or voidable marriages were artifi cially
divided into two groups, those born of a marriage performed prior to the
enactment of the legislation and those born after its enactment.
10. The anomalies in the erstwhile provisions of Section 16 were
succinctly summarised in the judgment of this Court in Parayankandiyal
Eravath Kanapravan Kalliani Amma (Smt) v K Devi14. The Court noted:
"58. In spite of the foresightedness of the legislators, the intention of
Parliament could not be fully refl ected in the Act which unfortunately
suff ered at the hands of persons who drafted the Bill and the various
provisions contained therein. The results were startling. Since the
Rule of Legitimacy was made dependent upon the marriage (void or
voidable) being annulled by a decree of annulment, the children born
of such marriage, would continue to be illegitimate if the decree of
annulment was not passed, which, incidentally, would always be the
case, if the parties did not approach the court. The other result was that
the illegitimate children came to be divided in two groups; those born
of marriage held prior to the Act and those born of marriage after the
Act. There was no distinction between these two groups of illegitimate
children, but they came to suff er hostile legislative discrimination on
account of the language employed therein. Indeed, language is an
imperfect instrument for the expression of human thought."
11. The Fifty-ninth Report of the Law Commission of India (March
1974) elaborated upon the status of children born of a void marriage.
Paragraph 2.36 of the Report elaborated that there were four possible
14 (1996) 4 SCC 76
REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, CJI]
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premises to adopt, which were thus:
"2.36. ...With reference to the status of children born of a void
marriage, theoretically, four principal views are possible:-
(i)
One view is that such children must be regarded as illegitimate,
because a void marriage has, in law, no existence, and the children
of such a marriage can only be regarded as fi lius nullius;
(ii) The second view is that they should be entitled to succeed to their
parents, as if they were legitimate, provided that the parents had
contracted the marriage bona fi de and without knowledge of any
impediment;
(iii) According to the third view, they should, in all cases, be entitled
to succeed to their parents as if they were legitimate;
(iv) There could be a fourth view, namely, that they must be entitled
to succeed to other relations in all cases."
The Law Commission noted that the legislature had adopted the third
view. The report noted:
"The Hindu Marriage Act, however, has already adopted the third view
it would be a retrograde step if it now reverts to the second view. That
apart, the third view is absolutely more fair to the innocent off -spring
of the marriage, and more in harmony with modern social notions. We
are, therefore, of the opinion that there is no justifi cation for reverting
to the second view."
Section 16 was amended by Act 68 of 1976. As amended, Section 16
provides as follows:
"16. Legitimacy of children of void and voidable marriages.-(1)
Notwithstanding that 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 (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.
333
(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."
12. In Kalliani Amma (supra), a two judge Bench held that Section
16 as it was originally enacted 'discriminated between two groups of
illegitimate children in the matter of conferment of status of legitimacy'
and was hence violative of Article 14. The Court noted that in its earlier
form, Section 16 was linked with Sections 11 and 12. While holding that
the substituted Section 16 is constitutional, the Court analysed the impact
of the non- obstante provision in sub-section 1. The Court held:
"78. The words "notwithstanding that a marriage is null and void
under Section 11" employed in Section 16(1) indicate undoubtedly
the following:
(a) Section 16(1) stands delinked from Section 11.
(b) Provisions of Section 16(1) which intend to confer legitimacy
on children born of void marriages will operate with full vigour in spite
of Section 11 which nullifi es only those marriages which are held after
the enforcement of the Act and in the performance of which Section
5 is contravened.
(c) Benefi t of legitimacy has been conferred upon the children
born either before or after the date on which Section 16(1) was
amended.
REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, CJI]
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(d) Mischief or the vice which was the basis of unconstitutionality
of unamended Section 16 has been eff ectively removed by amendment.
(e) Section 16(1) now stands on its own strength and operates
independently of other sections with the result that it is constitutionally
valid as it does not discriminate between illegitimate children similarly
circumstanced and classifi es them as one group for conferment of
legitimacy.
Section 16, in its present form, is, therefore, not ultra vires the
Constitution."
Section 16 was held to be intra vires. The Court held that Section
16 enacts a legal fi ction: by a rule of 'fi ctio juris' the legislature has
provided that children, though "illegitimate", shall, nevertheless, be treated
as legitimate notwithstanding that the marriage was void or voidable.
Interpreting the legal fi ction in Section 16, the Court in Kalliani Amma
observed that "illegitimate children, for all practical purposes, including
succession to the property of their parents have to be treated as legitimate".
However, "they cannot ...succeed to the properties of any other relation
on the basis of this rule, which in its operation, is limited to the properties
of the parents":
"82. In view of the legal fi ction contained in Section 16, the illegitimate
children, for all practical purposes, including succession to the
properties of their parents, have to be treated as legitimate. They
cannot, however, succeed to the properties of any other relation on the
basis of this rule, which in its operation, is limited to the properties
of the parents."
13. Section 2 of the HMA 1955 contains provisions for the application
of the Act15. Under clause (a) to the Explanation, where both the parents of a
15 2. Application of Act - (1) This Act applies
(a) to any person who is a Hindu by religion in any of its forms or developments,
including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya
Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person domiciled in the territories to which this Act extends who is
not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such
335
child are Hindus, Buddhists, Jainas or Sikhs 'by religion', the child, whether
legitimate or illegitimate, would also be a Hindu, Buddhist, Jain or Sikh,
as the case may be. Under clause (b) where one of the parents professes
any of the four religions, the child would be regarded as Hindu, Buddhist,
Jain or Sikh, whether the child is legitimate or illegitimate. Clauses (a) and
(b) of the Explanation indicate that the legitimacy of a child, one or both
of whose parents profess Hinduism, Buddhism, Jainism or Sikhism, is not
relevant to the applicability of the Act to the child.
14. Sub-section (1) of Section 16 provides a declaration of legitimacy
("shall be legitimate") to a child born of a void marriage, while sub-section
(2) contains a deeming consequence of the legitimacy of a child ('shall be
deemed to be their legitimate child") born of a voidable marriage in the
situations envisaged in the respective provisions. Sub-section (1) governs
a situation where a marriage is null and void under Section 11. Sub-section
(2) deals with a situation where a decree of nullity is granted in respect of
a voidable marriage under Section 12. Sub-section (1) declares that a child
born from a marriage that is void under Section 11 "shall be legitimate"
if such a child would have been legitimate if the marriage had been valid.
The declaration of legitimacy under sub-section (1) operates whether the
person would not have been governed by the Hindu law or by any custom or usage
as part of that law in respect of any of the matters dealt with herein if this Act had
not been passed.
Explanation. - The following persons are Hindus, Buddhists, Jainas or Sikhs by
religion, as the case may be:
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists,
Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist,
Jaina or Sikh by religion and who is brought up as a member of the tribe, community,
group or family to which such parent belongs or belonged; and
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh
religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act
shall apply to the members of any Scheduled Tribe within the meaning of clause (25)
of Article 366 of the Constitution unless the Central Government, by notifi cation in the
Offi cial Gazette, otherwise directs.
(3) The expression "Hindu" in any portion of this Act shall be construed as if it included
a person who, though not a Hindu by religion, is, nevertheless, a person to whom this
Act applies by virtue of the provisions contained in this section.
REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, CJI]
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child is born before or after the commencement of Act 68 of 1976 which
substituted the provisions of Section 16 and whether or not
(i)
a decree of nullity was granted in respect of a marriage; and
(ii) the marriage was held to be void otherwise than on a petition
under the enactment.
15. In contrast to sub-section (1), sub-section (2) embodies a deeming
consequence of legitimacy, contingent on a decree of nullity under Section
12 where the child is "begotten or conceived" before the decree is made, if
the child would have been the legitimate child of the parties to the marriage
if it was dissolved instead of being annulled on the date of the decree.
Once the conditions in sub-sections (1) and (2) are met, both the provisions
essentially protect the legitimacy of the child.
C. Rights in or to the property of parents
16. Sub-section (3) of Section 16 commences with a non-obstante
provision ("nothing contained in sub-section (1) or sub-section (2)").
Parliament while enacting sub-section (3) intends to ensure that the
legislative conferment of legitimacy will not confer upon such a child born
from a void or voidable marriage as the case may be, "any rights in or to the
property of any person other than the parents" where, but for the passing
of the legislation, the child would have been incapable of possessing or
acquiring any such rights by reason of their not being the legitimate child
of the parents. There are two crucial expressions in sub-section (3): the fi rst
is "any rights in or to the property of any person other than the parents";
and the second is "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". Sub-section (3), in other
words, circumscribes the consequence of the legislative protection of the
legitimacy of the child in relation to the conferment of rights in property. But
for sub-section (3), the conferment of legitimacy on a child from a void or
voidable marriage would have placed the child, for all intents and purposes,
at par with a legitimate child in matters relating to property. The frame of
sub-section (3), however, indicates that the conferment of legitimacy will
not confer upon the child rights in or to the property of a person other than
the parents. Sub-section (3) implicitly recognizes that the child conferred
337
with legitimacy by virtue of the provisions of sub-sections (1) and (2)
would be entitled to rights in or to the property of the parents of the child.
But the provision equally indicates that the conferment of legitimacy will
not operate to confer rights in or to the property of persons who are not the
parents of the child. This stipulation is, however, conditioned by the last part
of sub-section (3) which provides that such a child would not have rights in
or to the property of a person who is not a parent where but for the passing
of the Act the child would have been incapable of possessing or acquiring
such rights by reason of not being the legitimate child. This last part of
sub-section (3), takes us back to the position as it stood before the passing
of the Act. If, but for the enactment of the provision the child would not
have been capable of possessing or acquiring rights over the property of any
person other than the parents by virtue of the 'illegitimacy', the child will
not have rights to or in the property of a third party (other than the parents).
By its plain terms, Section 16(3) indicates that Parliament, while conferring
legitimacy on a child born from a void or voidable marriage, confi ned the
rights of the child to or in the property of the parents and nota party other
than the parents.
D. Issues in the reference
17. The reference essentially raises the following issue: whether a
child who is conferred with legislative legitimacy under Section 16(1) or
16(2) is, by reason of Section 16(3), entitled to the ancestral/coparcenary
property of the parents or is the child merely entitled to the self-earned/
separate property of the parents. The questions that arise before us are - fi rst,
whether the legislative intent is to confer legitimacy on a child covered by
Section 16 in a manner that makes them coparceners, and thus entitled to
initiate or get a share in the partition - actual or notional; second, at what
point does a specifi c property transition into becoming the property of the
parent. For, it is solely within such property that children endowed with
legislative legitimacy hold entitlement, in accordance with Section 16(3).
18. The answer to the latter question would primarily depend on
interpretation of the phrase 'any rights in or to the property of any person,
other than the parents'. In order to understand the ambit of the phrase, and
the scope of the right, it would become necessary to analyse the provisions
of the Hindu Succession Act 1956.
REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, CJI]
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[2023] 14 S.C.R.
19. At this stage, it would be necessary to dwellon the fundamental
precepts underlying the institution of the Hindu Undivided Family.