S.16 of the Hindu Marriage Act confers legitimacy only on children born of a marriage void under S.11 of the Act, and does not apply to marriages void under the Madras Act.

The short point that arises in this second appeal is whether the son born of a void marriage is entitled to get a share in his father's properties.

2. Plaint schedule properties, two in number, admittedly belonged to one Moothoran who died leaving behind his first wife Manikyam, the 9th defendant in the suit and their children, defendants 1 to 8. Plaintiff is the son born to Moothoran in his second wife Manikyam. That marriage was contracted in 1954 by the agreement Ext. A2. Plaintiff sought partition of the properties into 10 equal shares and claimed one such stare. The trial court found plaintiff to be one of the heirs of Mootharan and granted the relief of partition. On appeal the lower appellate court reversed that decision and refused 'he relief finding that the marriage between Moothoran and 10th defendant was contracted before the commencement of the Hindu Marriage Act and as such plaintiff was ineligible to claim a share. Hence the second appeal which was admitted on the following questions of law.

i. Whether the plaintiff is not the legitimate son of deceased Moothoran through his second wife Manikyam?

ii. Whether the plaintiff is not entitled to the provisions contained in S.16 of the Hindu Marriage Act and claim 1/10 share of his deceased father?

iii. Whether the plaintiff is not entitled to get the benefit of S.16 even if the marriage of his father and mother was not duly solemnised as required under the customary rights?

iv. In view of the judgment in O.S.480/74 and the order in O.A.No.5677/76 whether the suit is barred by res judicata?

v 3. Heard counsel on both sides.

4. That plaintiff was born in the second wife of Moothoran during the subsistence of the marriage relationship with 9th defendant is not disputed. Share is claimed on the basis that S.16 of the Hindu Marriage Act confers legitimacy on the children born in the second wife. The second marriage was contracted before the commencement of the Hindu Marriage Act. S.16 of the Act as it stood before the amendment by the Marriage Laws Amendment Act 1976 confers legitimacy on any child begotten or conceived before a decree of nullity is granted in respect of any marriage under S.11 or S.12 and he shall be deemed to be a legitimate child notwithstanding the decree of nullity. The scope of the section was widened by the amendment and it is provided that the benefit of S.16 can be claimed by any child of a marriage which is null and void under S.11. In other words, the section has been made applicable to children of marriages void or voidable under Ss.11 and 12.

5. Section 11 of the Act applies only in the case of a marriage solemnised after the commencement of the Act. A question arises whether children born in a void marriage before the commencement o f the Act are eligible to the benefits of the section. The position is no longer res integra. A Division Bench of this Court In KalIyani Amma v. Devi (1989 (2) KLT 80) held that S.11 deals with only invalidity of marriage under the Act and not of marriages otherwise invalid. The Division Bench did not see any discrimination in conferring legitimacy by S.16 of the Act only on those who will be otherwise illegitimate for the reason of the applicability of S.11 of the Act. It is observed that the disqualification of illegitimacy under the Hindu Marriage Act alone is removed under S.16 of the Act. A contention is seen raised before the Division Bench that the benefits conferred under S.16 of the Act should be extended to the children born of a second marriage at a ti me when the first marriage was subsisting irrespective of whether the marriage was solemnised before or after the commencement of the Act. This contention was not acceptable to the court and it was held that S.16 of the Hindu Marriage Act confers the benefit of legitimacy only on those children born of a marriage void under S.11 of the Act. In that case the second marriage was contracted in violation of S.5 of the Madras Marumakkathayam Act which pro