Children born from void marriages are legitimate and have rights in the property of their parents, including the right to inherit the property of their parents under the Hindu Succession Act.

JUDGMENT - B.A. MASODKAR, J.:---For the purpose of the present appeal that arises out of a suit filed by the respondent for possession of three plots relying on her right to succeed to the interest of her husband Nagappa, few facts as found, are not in dispute. It was held by the first Appeal Court that Nagappa got the suit property, that is, Plot No. 228, by inheritance from his mother Nagwada, but the Appeal Court dismissed the suit with regard to the other plots, being Plots Nos. 230 and 231. There is no cross-appeal with regard to those plots. The first appeal Court's judgment decreed the suit of Limbabai with regard to the said Plot No. 228, holding that the present appellants would not have any right or interest therein because appellant No. 1 Laxmibai's marriage with Nagappa was void. That marriage took place on May 24, 1955. The other appellants were born thereafter. It has been found that plaintiff Limbabai was married to Nagappa according to Hindu rites and was alive on that date. Applying the provisions of the Bombay Prevention of Hindu Bigamous Act, 1946, the first Appeal Court held that Hiralal and Ambubai, the son and the daughter born from Laximibai to Nagappa, because Laxmibai's marriage was void, would be illegitimate children. Holding so, the first Appeal Court has decreed suit with regard to Plot No. 228 and has also made an order, directing delivery of possession of the said plot as well as inquiry into future mesne profits.

2. These undisputed facts clearly go to show that as far as application of the law is concerned, there is an apparent error in the judgment under appeal. The marriage of Laxmibai and the rights and entitlement of Hiralal and Ambubai will have to be found on the basis of the Hindu Marriage Act, 1955 (hereinafter called "the Act"). It is not in dispute that this should be so because the Act came into force on May 18, 1955, while Laxmibai was married with Nagappa in May 24, 1955, that is, after the commencement of the Act. Undoubtedly, therefore, to that marriage the provisions of section 5(1) read with section 11 of the Act will have to be applied. So applied, it leaves no manner of doubt that plaintiff Limbabai, the first wife of Nagappa, being alive on the date of the marriage, the marriage of Laxmibai would be void and will have to be treated as such.

3. The narrow question is, what is the impact of section 16(1) and section 16(3) of the Act read with the provisions of section 8 of the Hindu Succession Act, 1956 ?

4. It was contended on behalf of the appellants that in view of the provisions of section 16, the children born from the void marriage do not lose their legitimate rights in the property, there being express recognition enacted by the terms of law. The contesting argument is that legitimacy under section 16 would not further clothe the other wife's illegitimate children with the status of "son" or "daughter" for the purpose of the Hindu Succession Act.

5. The history of section 16 of the Hindu Marriage Act goes to show that it was enacted to confer status of legitimacy upon children born of void and voidable marriages. The Joint Committee's report, with regard to the basis on which section 16 was enacted, clearly indicates that in its view in no case, the off-springs of void or voidable marriage be regarded as illegitimate.

6. The present section which is in three parts, has been substituted for the original section 16 and sub-section (1), which opens with non obstante clause, declares, in no uncertain terms, that notwithstanding that such a marriage is null and void under section 11, the off-spring of such marriage shall be legitimate whether such child was born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under the Act and whether or not the marriage is held to be void otherwise than on a petition under the Act. The 1976 amendment and the substitution of section 16(1) i

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