As some of the contesting counsel veered towards a consensus that under Section 16(3) of the Hindu Marriage Act, 1956 a child born to a void or voidable marriage would be entitled to an equal share with children born to the legitimate wife/husband from the parent’s property, some others propped a doubt as to whether that property would include the self-acquired property of the parent or the inherited ancestral property. Arguments plumbed the depths of existing jurisprudence and threw up several hitherto judicially unattended nuances emerging from Section 16, which provided a clarification to the property right of an illegitimate child and limited it to parental property. Only clarification given by Section 16(3) is that such a child would have no rights over properties of other members of a HUF.
This was explained by some counsel as a bar on the right of an illegitimate child over the properties held under HUF, where every child born to valid marriages within the undivided family is entitled to a share of jointly-owned property the moment he/she takes birth.
Even after day-long engrossing arguments, when a bench of Chief Justice D Y Chandrachud, and Justices J B Pardiwala and Manoj Misra intended to reserve the verdict, several counsels desired to place their submissions on this issue, forcing the court to schedule further hearing on Thursday. The genesis of the issue was from a trial court in Karnataka, which in 2005 ruled that children born of illegitimate marriage had no coparcenary rights over ancestral properties of parents. A district judge reversed the trial court’s view.
However, the Karnataka HC ruled that “Section 16(3) of the Hindu Marriage Act makes it clear that illegitimate children only had the right to the property of their parents and no one else. It said that once the HUF/ancestral property is divided on the death of the parent, the illegitimate child can have share in the portion of property that accrued to his/her parent, but with a caveat that such a right would emanate only if such parent died without a will”. When the Karnataka HC’s ruling was challenged before the SC, a two-judge bench had on March 31, 2011 referred it to a three-judge bench and framed the question—whether illegitimate children are entitled to a share in the coparcenary property or whether their share is limited only to the self-acquired property of their parents under Section 16(3) of the Hindu Marriage Act?
In 2011, the bench had said, “The court must remember that relationship between the parents may not be sanctioned by law but the birth of a child in such a relationship must be viewed independently of the relationship of the parents. A child born in such a relationship is is entitled to all the rights which are given to other children born in a valid marriage. This is the crux of the amendment in Section 16(3).”