Children Born Out Of Void Marriage Entitled To Inherit Ancestral & Self-Acquired Property Of Hindu Father: Orissa High Court

The Orissa High Court has held that children born out of second/void marriage are also entitled to inherit not only the self-acquired but also the ancestral properties of their father since Section 16 of the Hindu Marriage Act, 1955 ('HMA') confers legitimacy on children born out of void marriage and the Hindu Successions Act, 1956 ('HSA') gives right to legitimised children to inherit self-acquired properties of parents as Class-I heirs.Clarifying the position of law regarding right of inheritance of children born out of illegal/void marriage, the Division Bench of Justice Bibhu Prasad Routray and Justice Chittaranjan Dash held –“Section 16 of the HMA confers legitimacy on children born from void and voidable marriages, ensuring that they are entitled to inherit their parents' property. Under the HSA, legitimate children including those legitimised under Section 16 of the HMA, fall under the category of Class-I heirs, giving them an undisputed right to inherit the self-acquired property of their parents.”Case BackgroundThe respondent filed a civil proceeding before the Family Court, Bhubaneswar, seeking a declaration that she is the legally wedded wife of Late Kailash Chandra Mohanty ('the deceased') and therefore, his rightful legal heir. She claimed that their marriage took place on 05.06.1966 as per Hindu rites and customs and they lived together.She further alleged that the appellant was merely working with the deceased and had no legitimate marital relationship with him. The Family Court decreed the suit on 29.10.2021, declaring the respondent as the legally wedded wife and legal heir of the deceased, entitling her to inherit his ancestral and self-acquired property. Aggrieved by the judgment, the appellant filed a matrimonial appeal before the High Court, challenging the decision on the grounds that she was not given a fair opportunity to present her case. The High Court observed that there was reasonable cause for the appellant's non-appearance and held that the Family Court's judgment was passed without affording the appellant proper opportunity to contest the matter.Consequently, it nullified the judgment dated 29.10.2021 and remitted the matter back to the Family Court, Bhubaneswar, for fresh adjudication. Additionally, considering the advanced age of both the parties, it made an interim arrangement concerning the disputed property and directed that until the final outcome of the case, the usufructs arising from the property would be shared in a 60:40 ratio, with 60% in favour of the respondent and 40% in favour of the appellant.Thereafter, the Family Court reheard the matter and passed a fresh judgment on 12.12.2023, once again declaring the respondent as the legally wedded wife of the deceased and his legal heir, thereby reaffirming her right to inherit his ancestral and self-acquired properties. Being aggrieved, the appellant filed this matrimonial appeal.Senior Counsel Banshidhar Baug, appearing for the appellant, questioned the Family Court's finding that the respondent is the sole legal heir of the deceased, contending that the children born from the appellant's relationship with the deceased are legitimate under Section 16 of the HMA and hence, are entitled to inherit their father's self-acquired property as Class-I heirs under the HSA. Court's ObservationsThe Court noted that in the final order, the Family Court only declared that the respondent is the legal heir of the deceased and entitled to inherit his ancestral and self-acquired property. However, despite discussion in the judgment, it did not clarify that the children born from the appellant have a right over both ancestral and self-acquired property of the deceased.So far as rights of children born out of void marriage is concerned, the Court held Section 16 of the HMA confers legitimacy on children born from void and voidable marriages and thereby entitles them to inherit their parents' property. Furthermore, the HSA says legitimate children, including those legitimised under Section 16 of the HMA, fall under the category of Class-I heirs, giving them the right to inherit the self-acquired property of their parents.Reference was made to the judgment of the Apex Court in Revanasiddappa & Anr. v. Mallikarjun & Ors., 2023 LiveLaw (SC) 737 where it was held that Section 16(3) of the HMA restricts the rights of such children to only the property which falls in the share of the parents out of the joint family property, besides self-acquired property. The judgment further clarified that where the parent was a Hindu Mitakshara coparcener, the explanation to Section 6(3) of the HSA comes into play. Explanation to Section 6(3) says that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.“This means that before the...

Children Born Out Of Void Marriage Entitled To Inherit Ancestral & Self-Acquired Property Of Hindu Father: Orissa High Court

Jyoti Prakash Dutta

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