Rasala Surya Prakasarao And ... vs Rasala Venkateswararao And ...

on 21
February, 1992
Showing the contexts in which legitimate child appears in the document

19. Coming to the legal position after the-Hindu Marriage Act came into existence, we
find that original Section 16 laid down that where a decree of nullity is granted in
respect of any marriage under Section 11 or Section 12, any child begotten or conceived
before the decree is made who would have been the legitimate child of the parties to
the marriage if it had been dissolved instead of having been declared null and void or
annulled
by
adecree
of
nullity
shall
be
deemed
to
be
their legitimate child notwithstanding the decree of nullity. The first decision of
Andhra Pradesh High Court which dealt with the effect of section 16 of the Hindu
Marriage Act on the rights of an illegitimate son of a Sudra is Lakshmamma v.
Narasamma, (1978) 2 Andh LT 205). In this decision, Justice Jeevan Reddy considered
the scope and effect of old Section 16 as well as the amended Section 16 of the Hindu
Marriage Act. The facts of that decision are relevant to understand the principle
enunciated by the court. One Nara-sappa, who died on 3-4-1966, had two wives. The
plaintiffs mother is the second wife. After the death of Narasappa, the second wife and
plaintiff filed a suit O. S. No. 35 of 1968 for partition and separate possession of their
share in the estate of Narasappa. That suit was dismissed on two grounds; one, that the
marriage of the second wife with Narasappa being a nullity, she cannot have any claim
in the properties two, since the present plaintiff was born before the declaration of
nullity was obtained, plaintiff is disentitled from any share in the properties of
Narasappa. After that suit was dismissed, the second wife filed an application under
Section f 1 of the Hindu Marriage Ac' O. P. No. 45 of 1969 and obtained decree of
annualment of the marriage on 8-12-1971. An appeal filed against that order ended in
dismissal. Then the second suit was filed claiming for partition and separate possession
of 1/3rd share. In such a context, the court dealt with the legal position of the
illegitimate child. One other pecliar fact is that the second suit for partition was
dismissed on 29-9-1975 and when an appeal was filed and the appeal was
pending, Section 16 of the Hindu Marriage Act was amended. Old Section 16 was

replaced or substituted by a new one. The appellate court held that amended Section
16 comes to the rescue of the plaintiff and that she is entitled to the share in the
properties of Narasappa. After quoting the provisions of amendedSection 16, the learned
judge observed in paragraph 6 as follows :
"A reading of sub-section (1) in my opinion, does not leave any doubt that the
Parliament intended to benefit all the children before or after the commencement of
the Amendment Actand those born before or after the decree of nullity, by declaring
them as 'legitimate'. Sub-section (3) also provides 'clue to the intention of the
Parliament that such declaration oflegitimacy was not intended to be an empty one but
was supposed to be integrally connected with the devolution of properties also. The
section says that the children born of void marriages shall be deemed to be legitimate
as if the marriage had been valid, notwithstanding the fact that the marriage is declared
to be a nullity whether before or after the birth of the child, and notwithstanding the
further fact that the child is bom before or after the amendment. As a result of the said
section, the plaintiff must be deemed to be the legitimate child of Narasappa. If she is
a legitimate child, she would be undoubtedly entitled to a share in the properties of
Narasappa. Accepting the respondent's contention would mean that the plaintiff would
be deemed to be a legitimate child of Narasappa oly from the date of coming into.
force of theAmendment Act, she would be the legitimate daughter of Narasappa, but
shall have no share in his properties. Such could not have been the intention of the
Parliament. If she is legitimate, she is legitimate from her birth. In other words, she is
a legitimate child of Narasappa for all purposes. If so, she is entitled to a share in his
properties according to law."
In paragraph 27, the Division Bench summarised the propositions of law as follows:
"I. In regard to a child of a void marriage :
(1) a child of a marriage which is void under the provisions of Hindu Marriage Act,
whether a decree of nullity is passed or not, is a legitimate child S. 16(1), Hindu
Marriage Act, (2) Such achild does not acquire right to property which
a legitimate child would, but the legitimacy confers upon him right to property of his
parents. (S. 16(3), Hindu .Marriage Act);
"But having made it clear that the children born of such marriage would be regarded
aslegitimate children, notwithstanding the decree for nullity, which would otherwise

have the effect, because of the relation back principle, of enabling such children for
purpose of succession, the right of such children to inherit should be limited and
confined to the interest of their parents. The effect of the proviso is to limit the logical
result of legiti-mization with, relation back to the date of birth. The proviso forbids
conferment of any right on the legitimatized child in the property of any person other
than the parents, where, but for the passing of the Act, suchchild could have been
incapable of possession or acquiring any such rights by reason of his not being
the legitimate child of his parents. In other words, if S. 16 were not there, the result of
declaring the marriage as nullity would be to regard the children born of such marriage
as illegitimate in which case, they would not be entitled to any share at all in the
properly of the father, or to inherit any other property. But because of
the legitimization, they should be regarded as legitimate sons born of the marriage
declared void. But, in that case, the policy of S. 16 taken along with proviso appears to be
not to enable such child to have the full rights oflegitimate sons."