There was no any bar to a Hindu to marry number of wives till 1956 Hindu marriage act. After the 1956 Hindu marriage act came into force, the second marriages became void and therefore children born out of such marriages are called illegitimate. Till 1956 all the children born to all wives were coparceners and had equal rights.
Law after 1956 Hindu Marriage Act.
Section 5 prohibits marriage between the people having spouses
"Section 5 Condition for a Hindu Marriage.- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: (i). neither party has a spouse living at the time of the marriage"
Therefore the Hindu cannot marry once again during subsistence of earlier marriage. Therefore the children born out of void marriage are called as illegitimate.
There is misunderstanding of law as to the position of children born out of live in relationship as to succession of property. As per the Hindu succession Act section 8
General rules of succession in the case of males. - The property of a male Hindu dying intestate shall devolve according to the provisions of this chapter: -
(a) Firstly, upon the heirs, being the relative specified in class I of the schedule.
(b) Secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the schedule;
(c) Thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) Lastly, if there is no agnate, then upon the cognates of the deceased.
Is that share, when A male Hindu gets share in the partition between him and his father. It is coparcenary share.
Is that share when a Male Hindu gets share in the partition between him and his sons, this is his personal share.
This personal share is absolute and in this share the 1956 act gave right to female heirs and section 6 and 8 to 13 are engrafted for the purpose and as per class I heirs list of schedule illegitimate children are covered as son and daughter.
Son is shown as heir in class I of Schedule. Therefore there cannot be difference between the sons/children of void marriages and live in relationship. The Section 16 of Hindu marriage Act specifies condition of marriage as to second marriage/void marriage and their children only as illegitimate and there is no reference to children born out of live in relationship. The children born out of live in relationship are also son and daughter and fall under section 8 of Hindu succession act.
The Judgements of the Supreme Court on the rights of illegitimate children are given below.
1. V.R. SADAGOPA NAIDU Vs BAKTHAVATSALAM AND ANOTH (1963)
This case is in respect of children of second wife but married before 1956 therefore they are coparceners as the marriage was legal at that time. Only after 1956 Hindu marriage act came into force the second marriage is void and children are illegitimate.
2. GURNAM KAUR (SMT) AND ANOTHER Vs PURAN SINGH AND OTHERS (1996) and SMT. PARAYANKANDIYAL ERAVATH KANAPRAVAN KALLIANI AMMA AND OTHERS Vs K. DEVI AND OTHERS (1996)
In these cases, court held that children born to a Hindu in illegitimate relation are legitimate and will succeed to father’s property under section 8.
3. NEELAMMA Vs SAROJAMMA (2006)
In this case it is held that illegitimate children are entitled only to the self-acquired property of their father and not entitled in ancestral property of their father.
4. SATYENDRA KUMAR & ORS. Vs RAJ NATH DUBEY & ORS. (2016)
In this case, it is held that illegitimate children are entitled to succeed to the personal share of their father in ancestral property.
5. UNION OF INDIA Vs V.R. TRIPATHI, illegitimate children are entitled for appointment of employment on compassionate grounds.
6. Revanasiddappa And Another Vs Mallikarjun And Ors court
Noted earlier judgements on the point and differed from them and held that illegitimate children are entitled to succeed to the property of their father personal share even in ancestral property and therefore referred the matter to the larger bench and the larger bench yet to decide the matter.
Sons either of void marriages or live in relationship are entitled to succeed to the self acquired property of their father and also personal share of their father in the ancestral property either separated or not. Succeed means they are not entitled to file suit against father and only succeed to the property that is after death and cannot file suit against father.
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