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What Is The Legal Status Of Children Which Are Born Out Of Void And Voidable Marriage

Writer: lead indialead india
2 days ago4 min read

Children born out of void and voidable marriages stand before legal status, and that can be considered a relatively harsh and controversial issue, which existed for a long time. Indian law sets up the base under different circumstances of consanguinity, bigamy, and fraud by deeming certain marriages as void or voidable and making their rights ambiguous. The Hindu Marriage Act, of 1955, and the Special Marriage Act, of 1954, provide the provision for the legal status of an illegitimate child.


What is void marriage?

Section 11 of the HMA, 1955 deals with void marriage. It will apply to a marriage solemnized after the commencement of this Act. The marriage is void under section 11 on the violation of monogamy, Sapinda & Prohibited degree of relationship.

In which conditions does marriage become void?

If these conditions are violated then marriage becomes void.

  • Monogamy: It means when a person is married to only one person at a time.

  • Sapinda relationship: When two individuals belong to the same ancestors or forefathers, it can be either paternal or maternal.

  • Prohibited degree of relationship: When two individuals are related to prohibited degrees of relationship with the other is forbidden.


What is voidable marriage?

According to Section 12 of HMA, 1955, voidable marriage. The marriage whether solemnized before or after this act shall be voidable and may be void.

In which condition does marriage become voidable?

  • Impotency:  If a person is impotent, then the marriage cannot be consummated and practical impossibility.

  • Insanity: If any party is incapable of giving valid consent to it in consequence of unsoundness of mind or suffering from mental or suffering from a mental disorder, it can be the ground of voidable marriage.

  • Consent by fraud and force: If consent is obtained by fraud or force then it can be a ground of voidable marriage.

  • Prior pregnancy: When the respondent at the time of marriage is pregnant by a person other than the petitioner, the marriage falls under voidable.


Who is an Illegitimate child?

An illegitimate child is born outside legal marriage or without the recognition of parents. Over time, they were subject to social exclusion, and their rights to inheritance and citizenship were very limited. However, under the Hindu Marriage Act and Juvenile Justice Act, the rights, inheritance, and parental support of the child are equal to those of a legitimate child, without any consideration given to birth circumstance, as this would be to safeguard the interests of the child and his right to equality.


Law related to the legitimate child of void and voidable marriage under the Hindu Marriage Act, 1955:

Section 16 states that the child born out of a marriage which may violate the condition placed by section 11 would not be liable to be viewed as illegitimate. The fact that the marriage is or likely to be declared as void and voidable marriage, does not change the character of a child born of such a marriage and he remains the legitimate child. His rights are conferred statutory and protected by the aforesaid provision. He cannot claim any share in the ancestral property of his father. However, he has equal rights as his legitimate sibling on the property of his father and mother. An illegitimate child can claim self-acquired property:


In Jinia Keotin & Ors. Vs. Kumar Sitaram Manjhi & Ors. AIR 2003, it is observed that illegitimate children have been entitled to receive a share only in their self-acquired properties by their parents by providing the rule of fiction in Section 16 of the Act.


Is Section 16 of the Hindu Marriage Act, of 1955 constitutionally valid?

In Revanasiddappa & Anr. Vs. Mallikarjun & Ors. AIR 2011, the court has taken cognizance of the changing socio-cultural and economic dynamics of the society and has observed that with the changing social norms of legitimacy in the society with time.


Conclusion

Children born within voidable and void marriages in India have legitimate rights and protection. In such a case, a child is given paramountcy, even though the marriage may not be regarded as valid or may be avoided in some circumstances. All these proceedings ensure legitimacy regarding inheritance and welfare and maintenance rights of children. The essential highlights are Children born of voidable and void marriages are legal with complete inheritance rights. The void and voidable marriages do not affect the child's legitimacy and rights of succession, as it is decided upon the pronouncement of such marriages. The child's custody, maintenance and education issues are decided according to the interest of the child. Ultimately, under the eyes of this country, thus it will be protected to the child born out of a void and voidable marriage who will find legal status and comfort.


One can talk to a lawyer from Lead India for any kind of legal support. In India, free legal advice online can be obtained at Lead India. Along with receiving free legal advice online, one can also ask questions to the experts online for free through Lead India.


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