The Supreme Court, on September 1, clarified that children born from a void or voidable marriage are entitled to inherit their parent’s share in a joint Hindu family property. However, the child cannot claim rights to the property of other family members. A voidable marriage is one that can be invalidated by either party through a decree, while a void marriage is invalid from the beginning.

In determining the inheritance rights of a child born of such a marriage, the first step is to calculate the parent’s share in the ancestral property through a ”notional partition.” Once the share of the deceased parent is ascertained, the child can claim a portion of the property.

The ruling was based on Section 16 of the Hindu Marriage Act, which legitimizes children born from void or voidable marriages. This legitimacy, recognized by the Hindu Marriage Act, should be reflected in the Hindu Succession Act. Children from such marriages are to be treated as legitimate in terms of inheritance.

The case before the three-judge Bench was focused on an amended provision in the Hindu Marriage Act, Section 16(3). The case was referred to a larger Bench in 2011 after a Division Bench of the apex court refused to follow past precedents and championed the cause of children born out of illegitimate marriages. [...] “With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. The concept of legitimacy stems from social consensus, in the shaping of which various social groups play a vital role,” Justice Ganguly, who authored the 2011 judgment, had observed. During the hearings on the reference, Chief Justice Chandrachud had agreed with the Division Bench’s findings that children from void and voidable marriages had rights over the property, whether self-acquired or ancestral, of their parents. [Extracted with edits and revisions from “Children from void, voidable marriages entitled to parents’ share in ancestral property: Supreme Court”, by Krishnadas Rajagopal, The Hindu, https://www.thehindu.com/news/national/children-from-void-voidable-marriages-are-legitimate-can-claim-rights-in-parents-properties-sc/article67259229.ece ]

Ajay is married to 2 women, Diya and Riya, and both don’t know of each other. He was married to Diya first, when they were both around 23 years of age and studying together in college. They have no children. He later got married to Riya in a temple, and she had no idea about his first marriage with Diya. Ajay and Riya have 2 children, Raj and Rani. One day, Riya found out about Diya from one of Ajay’s college friends. She wants to divorce Ajay but finds out that her marriage to him is void since he was already married at that time. At a loss, she goes to a lawyer to find out about the rights of her children to inherit property. Which is the most legally sound advice that the lawyer could give to her?