REVANASIDDAPPA Vs. MALLIKARJUN

JUDGEMENT

(1.) A child born to parents whose marriage is null and void under Sec. 11 of the Hindu Marriage Act 1955 (The Hindu Marriage Act 1955 (HMA)) is declared to "be legitimate" by Sec. 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 been granted under Sec. 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 annulled (Sec. 16(2) of HMA). Sec. 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 Sec. 12. In Jinia Keotin v Kumar Sitaram Manjhi (2003) 1 SCC 730, a two judge Bench held that merely because the children born out of a void and illegal marriage have been specifically safeguarded under Sec. 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 parents (At page 732, para 2). This Court held that in view of the express mandate of the legislature in Sec. 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 Sarojamma (2006) 9 SCC 612 and later in Bharatha Matha v R Vijaya Renganathan (2010) 11 SCC 483. 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 (At page 513, para 29)."

(3.) The correctness of the decisions in Jinia Keotin, Neelamma, and Bharatha Matha has been doubted by a two judge Bench in Revanasiddappa v Mallikarjun (2011) 11 SCC 1. In its order referring the correctness of the earlier decisions to a larger bench, the Court has premised its doubt on the following basis: