Child of a Void Marriage: Property Rights Under Section 16 HMA

If you have come to this page, you probably already know the difficult part of your family history, and you want one plain thing settled: whether the law leaves you with anything at all. It does. But the law answers in two steps, and almost everything turns on the second one. Most pages stop after the first step and tell you that you are legitimate. That is correct, and it is only half the answer.

Section 16 of the Hindu Marriage Act 1955 carries the heading Legitimacy of children of void and voidable marriages. It deals with two different kinds of failed marriage. Section 11 of the Act deals with void marriages, which are void from the beginning. Section 12 deals with voidable marriages, which a court may annul by a decree of nullity.

Sub-section 1 covers the void marriage. In its own words:

• 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 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.

Read what that sentence does not ask of you. It does not ask you to have been born after a particular year. It does not ask for a decree of nullity. It does not even ask that a case under this Act was ever filed, because it covers a marriage held to be void otherwise than on a petition under the Act. The legitimacy is given by the section itself. Nobody has to grant it to you.

Sub-section 2 covers the voidable marriage, and it has a narrower job:

• 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.

Notice the opening words. Sub-section 2 operates where a decree of nullity is granted in respect of a voidable marriage under Section 12. If your parents' marriage was a second marriage entered into while an earlier marriage was still subsisting, that is a void marriage and sub-section 1 is the one that applies to you, with no decree needed. A good deal of material online treats void and voidable as one bucket. They are two different routes, and it is worth knowing which one you are on.

The full text of sub-section 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.

So the section does two jobs at once. It lifts the status, and it caps the reach of that status. Your parents are inside the fence. Everybody else in the family is outside it.

One detail is easy to miss, and it is in your favour. The statute says parents, in the plural. It is not written as father only. The same rule applies to your mother's property. Most readers arrive asking about a father, and that is the case this page mostly speaks to, but the rule as Parliament wrote it is not limited that way.

The left column and the right column come from the same section. That is the part people find hard to hold in mind. Section 16 is not grudging about your status and it is not generous about the property. It is precise about both.

Sub-section 3 leaves one question open: how far do the words other than the parents reach when the parent is a member of a joint family. A three judge bench of the Supreme Court answered it in Revanasiddappa v. Mallikarjun, in a judgment delivered on 1 September 2023, reported as 2023 INSC 783.

Two points from that judgment matter to you.

1. You do not become a coparcener. The court held that a child conferred with legitimacy under Section 16 sub-section 1 or sub-section 2 would not ipso facto become a coparcener in the Hindu Mitakshara Joint Family. Ipso facto means by that fact alone. Legitimacy on its own does not carry coparcener status with it.
2. You claim through your parent's share. Such a child is entitled to a share in the property that would be allotted to the parent on a notional partition taken immediately before the parent's death.

Taken together, those two points explain the fence in sub-section 3 rather than remove it. Your claim runs into your parent's share and it stops there. It does not run against the wider coparcenary as though you were a member of it.

The phrase sounds technical. The idea underneath it is simple, and you can hold it with one picture.

Imagine the joint family property being divided the moment before your parent died. No such division actually happened, and nobody signed anything. You are only asked to imagine it, which is why it is called notional. In that imagined division, work out what your parent would have received. That portion, and not the whole family property, is what your claim attaches to.

Two things follow from that, and both are worth saying plainly.

• The claim is derived from your parent. It comes to you through your parent's entitlement. You are not standing in the family property in your own right.
• The size cannot be stated in advance. It depends on what property was joint and on who else would have taken in that imagined division on that date. That is a question of fact about your family, not a number a website can supply.

Coparcenary itself is worth understanding separately, because a person who claims as a coparcener is in a different position from the one described here. A different page deals with a daughter's coparcenary right in ancestral property.

Three honest limits, so that you do not carry the wrong idea away from here.

• This is Hindu law. Section 16 is a section of the Hindu Marriage Act 1955 and it works on marriages governed by that Act. Muslim, Christian and Parsi personal law deal with this question differently. This page does not set out what those laws say, and the answer here should not be assumed to transfer to them.
• A live-in relationship is a different question. Section 16 speaks of a child of a marriage that is null and void, or that is annulled by a decree of nullity. A child born of a relationship that was never a marriage raises a separate question, and it is not dealt with here.
• No figures. The size of the share depends on the notional partition and on the composition of the family at the relevant time. This page will not give you a fraction, because an honest one cannot be given without those facts.

Not for your legitimacy. Sub-section 1 says the child shall be legitimate 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. Your status does not wait for a decree. Proving your parentage and your parent's entitlement in an actual property dispute is a separate matter of evidence, and that is where a lawyer earns their fee.

No. This is the exact question the Supreme Court answered in Revanasiddappa v. Mallikarjun on 1 September 2023. The court held that a child conferred with legitimacy by Section 16 would not ipso facto become a coparcener in the Hindu Mitakshara Joint Family. What you get instead is a claim to the share that would have been allotted to your parent on a notional partition taken immediately before the parent's death.

Take the question the way the statute frames it. Section 16 sub-section 3 confers no rights in or to the property of any person other than the parents. So there is no claim against a grandfather or an uncle in their own right. What you can reach is your own parent's share. If your parent was a coparcener in the joint family, the share that would have been allotted to that parent on a notional partition is the property your claim attaches to. Be clear about what that is and what it is not. It is your parent's own share in property that was joint. It is not your grandfather's separate property, which stays outside the fence sub-section 3 draws. The route runs through your parent, and it stops there.

Sub-section 1 deals with this in terms. The child shall be legitimate whether born before or after the commencement of the Marriage Laws (Amendment) Act, 1976. The 2023 judgment of the Supreme Court explained what that legitimacy means for property in a joint family. It did not create the legitimacy, because the section had already given it.

No. Section 16 sits inside the Hindu Marriage Act 1955 and governs marriages to which that Act applies. Muslim, Christian and Parsi personal law approach this question differently, and this page does not attempt to state what they provide. If your family is not governed by the Hindu Marriage Act, take advice on the law that does apply to you.

Start with the documents rather than with the argument. Gather whatever establishes your parentage, and whatever shows what your parent held in his or her own name as against what the family held jointly. That division between the parent's own property and the joint family property is the line your whole claim sits on, so it is worth being clear about it before somebody else defines it for you. Most families meet the paperwork question before they meet the legal one, and two separate pages cover the common documents: how to apply for a legal heir certificate and how to apply for a succession certificate. If a will is in the picture, that raises its own set of questions, which are dealt with in can you exclude children or a wife from a will. After that, take proper legal advice on your own facts, because the share cannot be worked out without knowing who else was entitled on the day your parent died, and nothing on this page is a substitute for advice on your family. If a public authority is sitting on a record you need, The RTI Playbook sets out how to prise it loose.

This page is general information about the law, current as of the date shown. It is not legal advice, and personal law differs across communities in India. Consult a lawyer about your own situation.