Children born out of a void marriage are entitled to a share only in the separate property and not to the joint family properties of their father

The Bombay High Court held that though Section 16 of the Hindu Marriage Act, 1955 confers legitimacy upon an offspring born out of a void marriage, such offspring is not entitled to a share in the joint family properties of his father. His share is restricted to the self-acquired property of his father and to the separate property of his father which will devolve upon such offspring only upon the death of the father, by way of succession.


The Bombay High Court delivered the said judgement in the case of Balkrishna Pandurang Halde, vs. Yeshodabai Balkrishna Halde, Second Appeal No.737 of 2013 decided on 30.07.2018.


The said Suit was filed by Respondent Nos.1 to 3 for partition and separate possession of their 1/4th share each in the suit properties. Respondent No.1 was the legally wedded wife of Appellant No.1 and Respondent Nos.2 and 3 are their married daughters. Appellant No.2 was the second wife of Appellant No.1 and Appellant Nos.3 and 4 were the children born to Appellant No.2 from Appellant No.1 within the wedlock. It is to be noted that the marriage of Appellant No. 2 with Appellant No.1 had taken place during subsistence of the marriage of Appellant No.1 with Respondent No.1 and therefore, her marriage was void.


One issue which the Court was called upon to determine was of entitlement of children born out of void marriage i.e. Appellant Nos.3 and 4 for the purpose of succession of properties under Section 16 of the Hindu Marriage Act, 1955.




The Bombay High Court observed that as per the legal position spelt out in Section 16(1) of the Act legitimacy is definitely conferred on the children born out of a void marriage. Therefore, in this case, Appellant Nos.3 and 4 can definitely be called as legitimate children. However, sub-section (3) of Section 16 of the Hindu Marriage Act, 1955, makes the position clear by stating that such children can have right only in the property of their parents and not in the property of any other person. Relying in the cases of Shantaram Tukaram Patil Vs. Smt. Dagubai Tukaram Patil and Jinia Keotin Vs. Kumar Sitaram Manjhi (2003) 1 SCC 730, the Court held that though by virtue of Section 16(1) of the Hindu Marriage Act, the illegitimate child has been conferred the status of a legitimate child, it did not confer the status of a coparcener. Consequently, such a child does not acquire any right by birth in any property, much less coparcenary, joint family property or ancestral property. Their right to claim the share remains limited only to the extent of the separate property of their father, but in that property, they cannot make any claim during the lifetime of their father. Their right in the separate properties of their father will accrue only on the death of their father and, that too, by way of succession.


In view of the legal position above, the Bombay High Court concluded that Appellant Nos.3 and 4 would get their share in the property only by way of succession, in the 1/4th share of Appellant No.1 on his dying intestate. They were not entitled to a share in the ancestral property of their father.