S.16 of the Hindu Marriage Act, 1956 grants legitimacy to children born in a marriage, even if the marriage is null and void, and their rights should be recognized in the distribution of the patrimony.

1. Three minor girls and their mother -- plaintiffs -- are before this Court. They claim a share in the property of one Gopalan. Gopalan is now no more. He passed away in the year 1975. The 1st defendant is admittedly the widow and 2nd defendant, the son. Portions of the properties have been conveyed to defendants 3 to 5. All the defendants resist the plaint claim. They contend that there was no valid marriage between the 1st plaintiff and deceased Gopalan, and that consequently the plaintiffs 2 to 4 cannot claim the status of legitimate children of Gopalan.

2. Gopalan had married the 1st defendant. She had some ailments, which in effect denied to Gopalan the comforts of matrimony. He did not, however, snap that relationship. He married a second time: the 1st plaintiff was the new bride. There is massive evidence to justify the finding of the courts below that a marriage had in fact been solemnised between Gopalan and the 1st plaintiff. It was, however, contended that, in the eye of law, there was no marriage between Gopalan and 1st plaintiff, in view of the subsistence of the earlier marriage and the legal taboo against a marriage during the subsistence of an earlier one (vide S.11 of the Act). When the second marriage is thus null and void, the 1st plaintiff cannot claim the status of a wife and plaintiffs 2 to 4 cannot claim to be the legal heirs is the finding of the courts below. The courts below have thus upheld the defence contention and denied relief to the plaintiffs. They have come up in appeal.

3. S.16 of the Hindu Marriage Act, 1956, (hereinafter referred to as "the Act") had been pressed into service by the plaintiffs, to claim the relief, even in a situation where marriage of the 1st plaintiff with Gopalan is found to be null and void.

4. This contention needs careful examination, in the light of the statutory scheme and the relevant facts.

5. S.16 of the Act underwent an amendment, the Hindu Marriage Amendment Act 1976, Act 68 of 1976. The Section as it stood before the amendment reads as follows:

"S. 16. Where a decree of nullity is granted in respect of any marriage under S.11 or S.12, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity:

Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void or annulled by a decree of nullity any rights in or to the property of any person other than the 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."

The new Section is:

"S. 16. (1) Notwithstanding that a marriage is null and void under S.11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is 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 this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under S.12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-s. (1) or sub-s. (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under S.12, any rights in or to the pr