The Madurai Bench of the Madras High Court has ruled that children born out of a void marriage are legitimate under Section 16(1) of the Hindu Marriage Act, 1955, and are entitled to a share in the property that falls to the share of their parents in the ancestral property.
The Division Bench, comprising Justice C.V. Karthikeyan and Justice R. Vijayakumar, partly allowed an appeal filed by the first wife and her son, modifying the preliminary decree passed by the trial court in a partition suit. The Court set aside the trial court’s finding that the second marriage was valid, declaring it void as it took place during the subsistence of the first marriage. However, applying the principles laid down by the Supreme Court in Revanasiddappa vs. Mallikarjun, the Bench confirmed the property rights of the children born from the void marriage.
Background of the Case
The case arose from a partition suit regarding the properties of late Duraisamy Udaiyar. The genealogy admitted by the parties showed that Duraisamy Udaiyar had two wives: Annapottu Ammal (1st Defendant) and Gandhimathi Ammal (7th Defendant).
- First Wife: Through Annapottu Ammal, he had five daughters and two sons.
- Second Wife: Through Gandhimathi Ammal, he had three daughters and two sons.
The plaintiffs, comprising daughters from both marriages and grandchildren, filed the suit against the sons (Defendants 2, 3, and 4) and the wives. They contended that the suit properties were self-acquired by Duraisamy Udaiyar and sought equal shares.
The defendants (sons and first wife) contested the suit, arguing that most properties were ancestral. A key dispute arose regarding the validity of the second marriage. The defendants claimed the second marriage took place in 1957 while the first wife was alive, rendering it void. Conversely, the second wife’s side claimed the marriage took place prior to 1949, before the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949 came into force, making it valid.
The I Additional District and Sessions Judge (PCR), Thanjavur, in a judgment dated February 18, 2013, held that the second marriage took place prior to 1949 and was valid. The trial court granted shares to the children of the second wife, treating them as legitimate heirs from a valid marriage. The first wife and her son appealed this decision.
Arguments of the Parties
The appellants (Defendants 1 and 4) argued that the trial court erred in concluding the second marriage occurred prior to 1949. They submitted that the marriage took place in 1955 or 1957, during the subsistence of the first marriage. They contended that the second wife was described as a minor aged 8 in a Will executed by her father, making a pre-1949 marriage impossible. Therefore, they argued, the marriage was void, and neither the second wife nor her children were entitled to shares in the ancestral properties.
The respondents (Plaintiffs and Defendants 2, 3) argued that even if the marriage was void, the children are entitled to a share in the property allotted to Duraisamy Udaiyar. They maintained the trial court’s finding regarding the date of marriage was correct.
Court’s Analysis and Observations
Validity of the Second Marriage The High Court scrutinized the evidence regarding the date of the second marriage. The Court noted that the 7th defendant (second wife) did not enter the witness box. The 4th defendant (DW2), son of the first wife, specifically deposed that the marriage took place in 1957. The Court observed:
“The 7th defendant has not chosen to grace the witness box to establish the date of her marriage… Without any basis whatsoever, the trial Court has chosen to presume that the second marriage of Duraisamy Udaiyar with the 7th defendant has taken place prior to 1949.”
Based on the evidence, the High Court set aside the trial court’s finding and held that the marriage took place in 1957. Consequently, the marriage was declared void as it occurred during the subsistence of the first marriage.
Rights of Children from Void Marriage Despite declaring the marriage void, the Court addressed the legitimacy of the children under Section 16 of the Hindu Marriage Act, 1955. The Bench noted that Section 16(1) confers legitimacy on children of void marriages.
Referencing the Supreme Court’s judgment in Revanasiddappa and another Vs. Mallikarjun and others (2023) 10 SCC 1, the Court examined the extent of property rights available to such legitimate children. The Court quoted the Supreme Court:
“In the case of joint family property such children will be entitled only to a share in their parents’ property but they cannot claim it on their right… 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 and there is no reason why such children will have no share in such property since they are equated under the law with legitimate offspring.”
Applying this legal position, the High Court held:
“In the present case, the marriage of Duraisamy Udaiyar with the 7th defendant is held to be a void marriage. However, the plaintiffs 4 to 6 and the defendants 2 and 3 have been conferred with legitimacy as per Section 16(1) of the Hindu Marriage Act, 1955. Therefore, they will be entitled to a share over the properties that fell to the share of Duraisamy Udaiyar in the properties which have been declared to be ancestral properties.”
Decision
The High Court modified the shares as follows:
- Ancestral Properties (Item Nos. 1 to 76, 91, 92, 122 to 125, 94 to 104):
- Duraisamy Udaiyar and his six children from the first marriage were each entitled to a 1/7th share.
- Duraisamy Udaiyar’s 1/7th share was further divided among all his children (6 from the first wife and 5 from the second wife). Each child gets 1/11th of his 1/7th share (i.e., 1/77th share).
- Final Calculation:
- Children of First Wife: Entitled to their own 1/7th share plus 1/77th from the father’s share. Total: 12/77th share each.
- Children of Second Wife: Entitled only to the share from the father. Total: 1/77th share each.
- First Wife’s Absolute Properties (Item Nos. 105 to 121):
- Since the first defendant (Annapottu Ammal) died pending appeal, her properties devolve upon her own children.
- Her children are entitled to 1/6th share each.
- Second Wife’s Absolute Properties (Item Nos. 77 to 90 and 93):
- Since the 7th defendant (Gandhimathi Ammal) died pending appeal, her properties devolve upon her children.
- Her children (Plaintiffs 4 to 6 and Defendants 2 and 3) are entitled to 1/5th share each.
The appeal was partly allowed to the extent of these modifications. No costs were awarded.
