Status of Children of void and voidable marriage

Status of Children of void and voidable marriage

Author – Smruthi A Y, a Student of Ramaiah College of Law



This research paper deals with the content status of the children of void and voidable marriages and its landmark cases. Marriage in India is sacrament. It is believed that marriage is not a relationship between two individualities but a thread which brings two families together. Hindu Marriage Act 1955 categorizes marriage into two that’s Void Marriage and Voidable Marriage. This paper deals with the status of the children of void marriage and voidable marriage and corner cases.


Void marriage and voidable marriage comes under the content nullity of marriage which comes under matrimonial causes. 

Matrimonial causes were introduced for all Hindus under The Hindu Marriage Act 1955 and has four matrimonial causes:

1. Nullity of marriage

2. Judicial separation

3. Dissolution of marriage

4. Restitution of conjugal rights

Nullity of Marriage

The law of nullity relates to impediments to the marriage. 

Impediments means any obstacles available to the marriage. If there exist impediments the parties cannot marry even if they marry then the marriage is not valid. 

There are two kinds of impediments i.e. absolute impediment and relative impediment. 

Absolute impediment means void ab initio that is the marriage is invalid from the very beginning and relative impediment means the marriage can be avoided by one of the parties to the marriage if they desire.

Void Marriage 

Section 11 of The Hindu Marriage Act states the meaning of Void Marriage. It states that a void marriage is a no marriage and this marriage does not exist from the very beginning. It is called as a marriage because two persons have undergone the ceremonies of marriage but they absolutely lack capacity to marry and they will not become husband and wife by undergoing ceremonies.

Grounds of void marriage:   

Few circumstances under which the marriage can be claimed as void they are as follows:

1. At the time of the marriage either party has a spouse living that is a bigamous marriage is void where husband had married again without obtaining decree of divorce such marriage would be void.

2. If the parties have sapinda relationship.  

3. The parties are within the prohibited degrees of the relationship. 

Voidable marriage

Section 12 of the Hindu marriage act speaks about voidable marriage that is a voidable marriage is a perfectly valid marriage as long it is not avoided. A voidable marriage can be avoided only on the petition by one of the parties to the marriage. If one of the parties does not annulment the marriage, the marriage will remain valid. In few circumstances when one party dies before the marriage is annulled then the marriage will remain valid forever. 

Grounds of voidable marriage:

 Four grounds of voidable marriages that are available in respect to both pre-act and post-act marriages they are as follows:  

1. Inability of the respondent on account of his or her impotency.

2. Respondent suffering from a mental disorder.

3. pre marriage pregnancy by the respondent. 

4. Consent obtained by fraud or force. 

Children of void and voidable marriage:

Section 16 of the Hindu marriage act speaks about the children of void and voidable marriage. It states that the children of a void marriage were illegitimate whether the marriage was declared null and void or not and the children of the voidable marriage became illegitimate when the marriage was annulled. 

The section was amended in the year 1976. The amendment laid down that the children of annulled voidable marriage and the children of void marriage will be considered as legitimate children.

In case of improper ceremonies of marriage, the children of that marriage will continue to be illegitimate.

The children of annulled voidable marriage and void marriage will inherit the properties of their parents alone and they will not inherit the property of their father’s parents. 


CASE 1: 

Harihar Prasad v/s Balmiki Prasad: 

In this case the court held that marriage performed by the parties who are sapindas to each other can be considered as valid if there is any evidence that has been a tradition of both the parties or else the marriage of two sapinda is punishable under section 18 of the Hindu marriage act. 

CASE 2: 

Shakuntala Devi v/s Amar Nath: 

In this case the court held that the marriage performed under prohibited degree of relationship can only be valid but for considering it to be valid marriage it must be proved that there should be evidence that it is accepted in their tradition and it should be old enough so that it can be termed as custom. 

CASE 3: 

Alok Kumar v/s state and another: 

In this case the Delhi High court while dealing with the validity of live in relationship held that live in relationship can be considered as a walk-in and walk-out relationship there are no strings attached to this relationship and neither does this relationship create a legal bond between the parties and it can also be considered as a contract of live in together which is renewed every day by the parties and can be terminated by either of the parties without the consent of the other party and one party can walk out at will at any time. 

CASE 4: 

SPS Balasubramanyam v/s suruttayan:

In this case the supreme court for the first time considered the question for the legitimacy of children born from the live in relationship in this case it was held that if a man and woman are living under the same roof and cohabiting for some years there will be a presumption under section 114 of the evidence act that they live as husband and wife and the children born to them will be considered as legitimate.

CASE 5: 

Revanasiddappa v/s Mallikarjun: 

In this case it was held by the court that regardless of the legitimacy of the relationship between parents the children born out of that relationship must be regarded separate from the relationship between the parents.

It was remarked by justice AK Ganguly that the child born from such relationship is innocent and has the right to get all the privileges and rights which are available to those children who are born out of the valid marriage.


Vidyadhari v/s Sukhrana Bai:  

In this case it was held by the supreme court that as per for section 16 of the Hindu marriage the children who were born out of a live in relationship should be given the status of legal heirs and are entitled to the right to inherit the properties of both the parents. 

CASE 7: 

Bharata Matha v/s R Vijaya Renganathan:

Before 2010 children born out of a live in relationship were considered as illegitimate for some legal purposes.

However, the supreme court in this case held that children born out of a living relationship are legitimate and up held their right of inheritance in the property.

Even though the Hindu marriage act 1955 does not directly recognise the live in relationship but under the section 16 of the Hindu marriage act indirectly provides legitimacy to such children and grants them right of inheritance. 

CASE 8: 

Dimple Gupta v/s Rajiv Gupta

In this case the Indian judiciary used its powers to achieve social justice goals.

In this case even illegitimate child born out of an illegal relationship is entitled to maintenance under section 125 of the code of criminal procedure 1973 which provides maintenance to children whether legitimate or illegitimate when they are minors and even after they have reached a majority if they are not able to support themselves. 

Section 125 of the code of criminal procedure 1973 forms the model of progressive legislation aiming to protect child rights in a situation where the people subjected to such laws are at no fault of their own. 

CASE 9: 

D Velusamy v/s D Patchaiammal: 

In this case the term relationship in nature of marriage was interpreted by the court as follows: relationship like marriage is akin to a common law marriage.

Common law marriages required that although being formally married is as follows:

a. The couple must hold to themselves out to society as being akin to spouses. 

b. The couple must be of legal age to marry.

c. The couple must be qualified to enter a legal marriage including being unmarried.

d. The couple must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period. 

When it comes to custodial rights it has been observed that special legislation is needed for an hour that could cover the custodial related aspect of children born from a live in relationship the issue of custodial rights emerges when a couple decides to split if any such issue of custody is brought before the court then there is no special legislation concerning live in relationships court may either decide these cases as the child of a married couple or as the child of an unmarried single mother. 


The Hindu marriage act recognizes children of void and voidable marriages after the amendment of the act in 1976.

The children born out of void and voidable marriages are considered as legitimate but the children who are born out of live in relationship do not have any provision under the Hindu marriage act but there are few cases where the children of the live in relationship is given importance.

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