Are Children From Second Marriage Entitled To Share In Ancestral Property?: Supreme Court Issues Notice

Whether children from a second marriage would have a share in ancestral property? The Supreme Court issued notice in a special leave petition which raised this issue.

In this case, the petitioner had approached the Apex Court challenging a High Court observation that the children should not inherit a share in the property of their grandmother since they were born out of 'the second wife'.

While issuing notice, the bench comprising Justices Sanjay Kishan Kaul and Hrishikesh Roy also noticed that a larger question as to whether in the ancestral property, the said children from a second marriage would have a share is pending consideration in Ravanasiddappa & Anr. vs. Mallikarjun & Ors, (2011) 11 SCC 1. The matter be listed after the judgment in the aforementioned case is pronounced, the court said.

Larger Bench Reference Pending Since 2011

Section 16 of the Hindu Marriage Act, 1955, provides that any child of a marriage which is null and void under section 11, who would have been legitimate if the marriage had been valid, shall be legitimate. However, Section 16(3) provides that it shall not be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

In Bharatha Matha & another Vs. R. Vijaya Renganathan & others, AIR 2010 SC 2685 and Jinia Keotin Vs. Kumar Sitaram (2003) 1 SCC 730 , the Apex Court had taken a view that the children born out of the void marriage were not entitled to claim inheritance of the ancestral coparcenary property and were entitled to claim a share only in the self acquired property of their father.

In Revanasiddappa and Anr. vs. Mallikarjun And Ors. (2011) 11 SCC 1], a two judge bench of the Apex Court took a different view opined that such children will have a right to whatever becomes the property of their parents whether self acquired or ancestral. Thus it had referred the matter to three judge bench. Interpreting this provision, the bench of Justices GS Singhwi and AK Ganguly had observed thus: "On a careful reading of Section 16 (3) of the Act we are of the view that the amended Section postulates that such children would not be entitled to any rights in the property of any person who is not his parent if he was not entitled to them, by virtue of his illegitimacy, before the passing of the amendment. However, the said prohibition does not apply to the property of his parents. Clauses (1) and (2) of Section 16 expressly declare that such children shall be legitimate. If they have been declared legitimate, then they cannot be discriminated against and they will be at par with other legitimate children, and be entitled to all the rights in the property of their parents, both self-acquired and ancestral. The prohibition contained in Section 16(3) will apply to such children with respect to property of any person other than their parents. With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. The concept of legitimacy stems from social consensus, in the shaping of which various social groups play a vital role. Very often a dominant group loses its primacy over other groups in view of ever changing socio- economic scenario and the consequential vicissitudes in human relationship. Law takes its own time to articulate such social changes through a process of amendment. That is why in a changing society law cannot afford to remain static. If one looks at the history of development of Hindu Law it will be clear that it was never static and has changed from time to time to meet the challenges of the changing social pattern in different time."

In March 2020, while considering another SLP that raised this issue, the bench of Justices Sanjay Kishan Kaul and KM Joseph had called upon the Registrar to look into this issue so that the papers can be placed before the Hon'ble Chief Justice of India for reference to a larger Bench.