What is the status and rights of children from marriages that are declared null and void? Can they legally inherit property?
The issue of women’s rights to property under Hindu law has been a contentious one. Earlier, women always had limited rights to property, which reverted back to the husband’s brothers if she did not have sons. A Hindu woman could enjoy the property in her lifetime, but she could not will it to anyone. Similarly, under customary Hindu law there was no bar to a man entering a second marriage.
However, the customary law was codified by the enactment of the Hindu Marriage Act in 1956, which declared as void a second marriage during the subsistence of the first one.
In the present case, the Supreme Court engaged with the question of inheritance under Hindu law by children of a marriage that was void due to the subsistence of an earlier marriage, in the case of Vuggina Pydamma and her two children. The judgment delivered in May 2006 is reported as Bhogadi Kannababu versus Vuggina Pydamma 2006 (5) SCALE 642, and though given in the context of a second marriage is applicable to children of a marriage that may be void on any other grounds, under Hindu law.
Under Hindu law, certain conditions have to be fulfilled for a valid marriage to be solemnised between two individuals. The first requirement is that neither party has a spouse living at the time of the marriage. The second condition is that the parties are capable of giving valid consent and are of sound mind and do not suffer any mental disorder or recurrent bouts of insanity. Individuals who are sapindas to each other or fall within prohibited relationships are also barred from marrying, unless permitted by custom or usage.
The notion of a sapinda relationship comes from traditional Hindu law and has been incorporated and defined under the Hindu Marriage Act, 1956. Taking the person concerned as first generation, the “sapinda relationship” extends as far as the third generation in the line of ascent through the mother, and the fifth generation in the line of ascent through the father. Thus on the mother’s side it would mean the father (second generation) and grandfather (third generation), and on the father’s side it would mean the father (second generation), grandfather (third generation), great-grandfather (fourth generation) and great-great-grandfather (fifth generation). The Act also defines degrees of “prohibited relationships”, including lineal ascendant or descendant and their spouses, brother-sister relationships, etc.
A marriage is considered void if either party has a spouse living at the time of marriage. Similarly, if the parties are sapindas to each other or fall within a “prohibited relationship”, the marriage is void. A void marriage has no existence, right from inception. As the parties lack the capacity to marry each other the conducting of marriage ceremonies does not confer the status of husband and wife on the individuals. There are no rights and obligations that follow the performance of a marriage that is void under the law. A decree or declaration from the court is not required for a marriage to be void.
Void marriages are distinguishable from “voidable” marriages. The grounds for a marriage to be “voidable” are different from those that make a marriage “void”. Under the Act, non-consummation of a marriage due to impotence, unsoundness of mind, consent through fraud or force, and being pregnant by someone other than the husband-to-be at the time of marriage make a marriage voidable. A voidable marriage is a valid and binding marriage unless a court passes a decree of annulment.
In the present case, the Supreme Court considered the question of marriage status and the question of inheritance by children of a void marriage.
Vuggina Suryanarayana owned some land in a village in Andhra Pradesh. He got married to Chilakamma. They had no children. Suryanarayana then went through a second marriage with Pydamma during the subsistence of his first marriage to Chilakamma. The second marriage resulted in two daughters being born to Pydamma — Nukaratnam and Mahalakshmi.
Suryanarayana died in January 1982 leaving behind two widows — Chilakamma and Pydamma. The first wife Chilakamma had no children and died in 1973. Suryanarayana’s land had been given on rent to his nephews who paid up for some time and then stopped, claiming that after the death of the first wife, Chilakamma, they had inherited the property. Pydamma filed for eviction on grounds of default in payment of rent and sub-letting.
The nephews submitted that there was no landlord-tenant relationship, and that they were in possession of the land in their own right. They claimed that as there were no children from the first marriage, following Chilakamma’s death they, as representatives of the late Suryanarayana, were the sole legal heirs to the property. The court had to decide whether, following the death of Suryanarayana and his first wife Chilakamma, the second wife, Pydamma, had succeeded to the property and was entitled to evict the tenants and take possession of the land.
The district munsif held that there was a landlord-tenant relationship and that Pydamma was entitled to evict her nephews. In appeal, the district judge held that Pydamma did not acquire any rights, title or interest in the property. She could not be said to be legally wedded, as her marriage had taken place during the subsistence of the marriage between Suryanarayana and Chilakamma. It was held that Pydamma was not entitled to evict the nephews.
The matter went up to the high court. At this stage, Pydamma and Suryanarayana’s two daughters were allowed to be made parties to the case. The high court held that the tenants were liable to be evicted on grounds of sub-letting and non-payment of rent. It found that the tenants had been inducted by Pydamma in the property although she did not acquire any rights, title or interest, following the death of the first wife, Chilakamma.
The nephews appealed and the matter reached the Supreme Court. It was submitted that, in view of the high court’s findings that Pydamma was not entitled to inherit Suryanarayana’s property, an order of eviction on an application by her could not be passed. They also challenged the fact that Pydamma’s daughters had been allowed to be parties to the case.
The Supreme Court held the permission to Pydamma’s two daughters to be made parties to the case as valid and proper. Thereafter, the court examined the provisions of the Hindu Marriage Act. It observed that Section 5 (i) of the Act clearly provides that no marriage can be performed if either party has a spouse living at the time of the marriage. Therefore, the marriage between Suryanarayana and Pydamma could not be considered valid, as Chilakamma had been alive at the time of the second marriage. The court took note of Section 11 of the Act, which states that any marriage solemnised after the commencement of the Act would be null and void if it were in contravention of Section 5 (i). As the marriage between Pydamma and Suryanarayana took place after the Hindu Marriage Act came into force in 1956, the court declared the marriage void.
The concept of void and voidable marriages came into our statute through English law. At the time the Hindu Marriage Act was passed, English law conferred the status of legitimacy on children of annulled voidable marriages. This was incorporated in Section 16 of the Hindu Marriage Act and an attempt was made to extend it to children of void marriages. However, the extension was worded in such a way as to confer legitimacy on children of void marriages that were declared null and void. Thus, children of marriages where there has been no declaration that the marriage is null and void remained illegitimate.
The provision was amended by the Marriage Laws (Amendment) Act in 1976 to declare that children of void marriages (whether declared void or not) are legitimate children. The judgment in the present case, relying on the amended proviso, points out that Section 16 (1) of the Act lays down that even though a marriage is null and void, any child of such a marriage, who would have been legitimate had the marriage been valid, shall be deemed legitimate. This legal fiction of legitimacy has been created so that children of void and voidable marriages do not suffer for no fault of theirs. However, children of void and voidable marriages are entitled to a right in the property of only their parents, not other relatives. And they do not enjoy an interest in coparcenary property.
Applying the law, the court declared that Pydamma’s daughters — Nukaratnam and Mahalakshmi — were to be considered legitimate and were entitled to inherit the property along with the first wife Chilakamma, following Suryanarayana’s death. Observing that Pydamma, though not entitled to inherit Suryanarayana’s property, could maintain an application for eviction. The court directed the eviction of the nephew-tenants for sub-letting and non-payment of rent.
