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llegitimate kids have a right to ancestral property too: SC

Last Updated: Saturday, April 2, 2011 - 00:55

New Delhi: The Supreme Court on Friday ruled that illegitimate children were not only entitled to a share in the self-acquired property of parents but also in ancestral property.

A bench of justices GS Singhvi and AK Ganguly said in a judgement that such children cannot be deprived of their property rights as what was considered illegitimate in the past may not be so in the present changing society.

"The court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such a relationship has to be viewed independently of the relationship of the parents.

"A child born in such a relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage. Right to property is no longer fundamental but it is a Constitutional right and Article 300A contains a guarantee against deprivation of property right
save by authority of law," the bench said.

The bench disagreed with a plethora of earlier decisions taken by the apex court in Jinia Keotin and several other cases that illegitimate children were entitled only to a share in the self-acquired property of the parents and nothing beyond that.

"In our view, in the case of joint family property, such children will be entitled only to a share in their
parents property but they cannot claim it on their own right.

The only limitation even after the amendment seems to be that during the life time of their parents, such children cannot ask for partition (of property) but they can exercise this right only after the death of their parents.

"Therefore, such children will have a right to whatever becomes the property of their parents whether self acquired or ancestral," the bench said.

The bench requested the Chief Justice of India to set up a Constitution bench to examine the issue.

"With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. The concept of legitimacy stems from social consensus, in the shaping of which various social groups play a vital role. Very often, a dominant group loses its primacy over other groups in view of ever-changing socio-economic scenario and the consequential vicissitudes in human relationship.

"Law takes its own time to articulate such social changes through a process of amendment. That is why in a changing society, law cannot afford to remain static," Justice Ganguly, writing the judgement, said.

The apex court passed the ruling while interpreting Section 16(3) of the Hindu Marriage Act vis-a-vis the property rights of illegitimate children in a property dispute arising out of the illegitimate and legitimate children of a family in Karnataka.

Under the Act, though a Hindu male`s second marriage during the subsinstence of the first marriage is declared void(illegal), the children born out of such marriage though
considered to be illegitimate are entitled to a share in the self-acquired property of the parents.

The apex court said the amendment to Section 16 by introducing the clause 3 was introduced with the obvious purpose of removing the stigma of illegitimacy on children born in void or voidable marriage.

"With the amendment of Section 16(3), the common law view that the off springs of marriage which is void and voidable are illegitimate ipso-jure has to change completely.

"We must recognise the status of such children which has been legislatively declared legitimate and simultaneously law recognises the rights of such children in the property of
their parents. This is a law to advance the socially beneficial purpose of removing the stigma of illegitimacy on such children who are as innocent as any other children," the bench said.

Hence, the bench said the interpretation given to Section 16(3) by the apex court in the earlier cases like Jinia Keotin, Neelamma and Bharatha Matha (supra) needs to be reconsidered.

However, it said the benefit given under the amended Section 16 is available only in cases where there is a marriage but such marriage is void or voidable in view of the provisions of the Act.


First Published: Saturday, April 2, 2011 - 00:55

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