Legal Status of Children Born Out of Void and Voidable Marriages

What are the rights of a child born in the void or voidable marriage? There are a lot of misconceptions related to the legal status of children born out of void and a voidable marriage in India. A legitimate child is a child born in lawful wedlock. When we talk about marriages, we have void, voidable and valid marriages. While, the terms void and voidable pose question mark to the legality of a marriage, valid marriages as the name suggests is legal. The major ambivalence that gets highlighted in such scenarios will be the legitimacy of a child in an annulled marriage.

Void marriages are null and void as these marriages contravene with the provisions pre-requisite for a valid marriage. Voidable marriages, on the other hand, are not ipso facto void, but the parties have an option to ask for nullity of the marriage from a competent court of jurisdiction on the grounds available under the statute. So, what happens to the children that are born out of the void and voidable marriages? What is their legal status when the legal status of the marriage they are born out of is tottered to smithereens?

Legitimacy of Children of Void and Voidable Marriages under the Hindu Marriage Act, 1955

Section 16 of the Hindu Marriage Act, 1955, discusses the legal status of children born out of the void and voidable marriage. In its sub-section (1), it states that if a marriage is declared null and void under Section 11 of the Hindu Marriage Act, 1955, then any child born out of such marriage shall be legitimate because he would have been legitimate if the marriage had been valid.

Section 16 in its sub-section (2) states that where a decree of nullity is granted in respect of a voidable marriage under Section 12 of the Hindu Marriage Act, 1955, then a child begotten or conceived before the decree is made shall be deemed to be a legitimate child notwithstanding the decree of nullity.

Rights of the Child Born Out of Such Marriages under the Hindu Marriage Act, 1955

Section 16(3) states that children born out of a marriage which is null and void or which is annulled by a decree of nullity, shall have any rights in or to the property of any other person except his 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.

Legitimacy of Children of Void and Voidable Marriages under the Special Marriage Act, 1954

Under Section 24 of the Special Marriage Act, 1954, a marriage will be void if its– (a) a bigamous marriage, (b) a marriage with a person of unsound mind or having other mental disorder, (c) a marriage with a male below 21 years or with female below 18 years, or (d) a marriage with a person within the degrees of prohibited relationship.

And under Section 25 of the Act, a marriage is voidable if — (a) the marriage has not been consummated owing to be wilful refusal of the respondent, or (b) the respondent-wife was at the time of marriage pregnant by some person other than the petitioner-husband or (c) the consent of either party to the marriage was obtained by coercion or fraud.

Section 26 of the Special Marriage Act, 1954, discusses the status of the children born out of the void and voidable marriages. In its sub-section (1), it states that if a marriage is declared null and void under Section 24 of the Special Marriage Act, 1954, then any child born out of such marriage shall be legitimate because he would have been legitimate if the marriage had been valid.

Section 26 in its sub-section (2) states that where a decree of nullity is granted in respect of a voidable marriage under Section 25 of the Special Marriage Act, 1955, then a child begotten or conceived before the decree is made shall be deemed to be a legitimate child notwithstanding the decree of nullity.

Rights of the Child Born Out of Such Marriages under the Special Marriage Act, 1954

Section 26(3) states that children born out of a marriage which is null and void or which is annulled by a decree of nullity, shall have any rights in or to the property of any other person except his 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.