‘Children born out of void marriages will now have right to the property of parents’ held Justice Harishankar V. Menon of High court of Kerala in his order which  also granted terminal and pension benefits to three children born from a man’s invalid second marriage which  he entered into without dissolution of  his first marriage in the instant case. 

Referencing a decision of the Apex court in Revanasiddappa v . Mallikarjun (2023), and the  amended section 16 of  Hindu Marriage Act (legitimacy of children of void and voidable marriages), Justice Harishankar V. Menon observed that children born out of a void marriage will also have a right to the property of parents.  

A brief summary of the instant case is that the Petitioner, and   late   Sri. C. Sreenivasan , who   was employed as an  Assistant Salesman in Kerala State Civil Supplies Corporation  married as per Hindu rites and  custom  and a daughter was born to them .  It was the petitioner’s case that her marriage with her husband was not cordial  compelling her to  file a petition for maintenance before the Family court, Kozhikode and an amount of Rs.3000  per month was directed to be paid to her by her husband. Thereafter, in the year 1986, the husband contracted  a second marriage with another woman during the subsistence of the first marriage and  also  obtained an ex parte divorce  from  the  petitioner from the Family court, Malappuram.  Upon getting to know of her husband’s second marriage the petitioner sought for setting aside the  said ex parte order which was duly set aside by Family Court, Malapurram. 

 In the midst of this her husband converted to Islam and as per Islamic custom got married  to his second wife who also likewise converted to Islam  and through this wedlock they had  three children. 

In the year 2015, the Petitioner’s husband died and the first wife approached the Corporation for terminal benefits but was refused  the same on account of the alleged  dispute   as regards the legal heirs of the deceased.

Meanwhile, the second wife applied for legal heirship certificate  which she obtained.  The certificate  ratified and     recognized her   children and her status as ‘bonafide legal heirs of the deceased’ . 

The court in its order stated that , ‘’the  petitioner , the legally wedded wife of late Sri C. Sreenivasan, has filed this Writ petition under Art 226 of Constitution of India, seeking to quash  order issued by Respondent 2  and also for a declaration that the petitioner is the legal heir of the deceased along with her daughter and her mother in law. She also sought for a direction to Respondent 1 to release and make payment of the terminal/pension benefits of her deceased husband, expeditiously’’. 

 In her Writ  petition the petitioner also  pointed out that the change in religion of her deceased husband and his second wife was only a ruse to defeat the interest/claim of the petitioner and her daughter.  

 In her defense the second wife filed a counter affidavit dated 08.112.2021, stating that she was not aware about the earlier marriage of the deceased with the petitioner and she got to know about the said marriage only subsequently. She also stated that the deceased , now Shafeeq, after conversion, lived and died as a Muslim since embracing Islam. 

Through this court a mediation was intitiated but it was reported to have failed from both sides , thereafter  the instant Writ Petition was taken up for final hearing. 

 The Court exhaustively  relied   on the Apex court’s principles laid down  in  Sarla Mudgal v. Union of india, (supra), Parayankandiyal Eravathkanapravan Kalliani Amma v. Deci [(1996) 4 SCC 76] , Lily Thomas v. Union of India (2000) Revanasiddappa v.Mallikarjun [2023 (5) KHC 486] other judgments and the amended Section 16  of the Act , that are substituted by Act 68 of 1976 with effect from 27. 05.1976 , before delivering its order in the instant case.    

Quoting the Apex court’s observations in these cases Justice Menon summarized them stating, ‘’ The long and short of the above judgments is that if a Hindu who had solemnised a marriage under the Act with a Hindu female, cannot bring to an end the marital ties with the Hindu wife by mere conversion to another religion, so long as the earlier marriage is subsisting. There cannot be a reference to Personal Laws for that matter.”

 “This Court also notices the judgment of the Apex Court in Revanasiddappa v. Mallikarjun [2023 (5) KHC 486] relied on by the learned counsel for the 4th respondent wherein with reference to the amended provisions of Section 16 of the Act, the court has held that the children born out of a void marriage will also have rights to the property of the parents. Therefore, by virtue of the amended provisions under Section 16 of the Act referred to above, the three children born out of the marriage of C.Sreenivasan with the 4th respondent herein are also legitimate.”

The Court observed that though the second marriage was declared  void , the deceased had entered  into a second marriage , lived together and had  three   children through this wedlock. The children born out of this marriage are also entitled to terminal benefits of the deceased. Referring to the amendments brought in Section 16 of the Hindu Marriage Act of 1976,  the Court drew attention to  the legislature that  has legitimised the rights of children born out of void marriages or before the dissolution of the first marriage. Noting   that granting  legal heirship to the petitioner and her daughter would not take away the rights of the other three children born out of the deceased’s second marriage. The court added the Apex court’s  observation in this regard, "the Apex Court has found that the above amendments were brought in, so as to bring social reforms, conferment of social status of legitimacy on a group of innocent children, etc. in the judgment of the Apex Court in Parayankandiyal Eravathkanapravan Kalliani Amma v. Devi [(1996) 4 SCC 76].”