Padmavathi and another vs Jayamma and others. Regular First Appeal 916 of 2014 decided on 15 May 2020. Justice B.V. Nagarathna and Justice Suraj Govindaraj.
Per Nagarathna J.: I have had the benefit of reading the erudite judgment of Hon’ble Suraj Govindaraj J. While I concur with the same, I wish to supplement my own reasoning
17. At the outset, it would be necessary at the outset to understand the import of Section 16 and its object and purpose particularly of sub-section (3) of Section 16 of the Act. But before that, the scheme of the Act would have to be considered. The Hindu Marriage Act, 1955 is an Act to amend and codify the law relating to marriage among Hindus. Section 2 of the Act speaks about the applicability of the Act, to any person, who is a Hindu by religion. The over riding effect of the Act is provided in Section 4 which also contains a saving clause. The conditions for a valid Hindu marriage are prescribed under Section 5 of the Act.
Thus, Section 16 uses the expression marriage, but the Act does not define the said expression, however the meaning and import of a Hindu marriage is evident from Sections 5 and 7 of the Act.
18. A reading of Section 5 of the Act would indicate that there are two major pre-requisites for a Hindu marriage: firstly, the two parties (Hindus), who are to marry as per the Act have to fulfil the conditions stipulated under Section 5. Secondly, their marriage must be solemnised in terms of Section 7 of the Act. Then only, there would be a valid Hindu marriage. If the conditions mentioned in Section 5 of the Act are not fulfilled, such a marriage could be either a void or voidable marriage as stipulated in Sections 11 and 12 of the Act. Further, if there is no solemnisation as per Section 7, there would be no marriage under the Act.
19. Section 16 is a benevolent provision, the object of which is to confer legitimacy on children born from a void or a voidable marriage and also, to give certain rights to such children in the properties of their parents only. Section 16(3) thus, places children born of a valid, void and voidable marriage on par insofar as legitimacy is concerned and also with regard to intestate succession to their parents’ properties only and not Mitakshara coparcenary property or joint family property. A conspectus reading of the said Sections would indicate that where there is solemnisation of a marriage between two Hindus in terms of Section 7 of the Act and such a marriage is either void or voidable on account of a non-fulfilment of any of the conditions mentioned in Section 5 of the Act, nevertheless, the children born from such a marriage are deemed to be legitimate and have limited property rights.
20. In this context, it would be useful to refer to Revanasiddappa vs. Mallikarjun [(2011) 11 SCC 1.
21. Though in the said case, a reference has been made for reconsideration of three earlier decisions of the Hon’ble Supreme Court on the interpretation of Section 16(3) of the Act namely, Jinia Kiotin vs. Kumar Sitaram Manjhi [(2003) 1 SCC 730), Neelamma vs. Sarojamma [(2006) 9 SCC 612] and Bharatha Matha vs. R.Vidya Renganathan [(2010) 11 SCC 483),in the context of right to succession under Section 16(3) to extend to joint family property also, the said issue having not yet been resolved by a Larger Bench of the Hon’ble Supreme Court, the said case is referred to, while considering the contentions raised herein, by restricting the right of illegitimate children to succeed to the properties of the parents only which is the current position under Section 16(3) of the Act.
22. Section 16 was substituted by Act 68 of 1976. On a reading of the same, it becomes clear that the object is to confer legitimacy on children born either from a void or voidable marriage. In other words, but for Section 16, the children born from such a marriage, are illegitimate. But under Section 16, there is a departure as the status of the children born from a void marriage are legitimate as also for the purpose of inheritance as per sub-section (3) of Section 16 of the Act. Thus, the right of children in the property of the parents only is recognised even when they have been born from a void or voidable marriage, as they have been conferred legitimacy and the right in the property of their parents. In other words, the illegitimate children cannot claim any share in the joint family property. Thus, illegitimate children can be equated with legitimate children in respect to only separate property of their parents. Hence, they would not have a right to succeed in joint family properties other than, the parents’ share in it is concerned as the law stands now and as interpreted by the Hon’ble Supreme Court. Children from a void marriage such as, bigamous marriage are not entitled to a share in the joint family or ancestral property, which falls to their father’s share at a partition, if the same continues to be joint. Presently this is the position of law. Thus, point no.5 is answered by holding that 16th and 17th defendants would be entitled to a share only in the separate property of their father, defendant No.2.
23. Since learned counsel for the appellant Sri.Surana has urged about solemnisation of marriage as a pre-condition for the applicability of Section 16 of the Act; it would be useful to refer to certain decisions of the Hon’ble Supreme Court in the aforesaid context. In Bharatha Matha vs. R.Vidya Renganathan [(2010) 11 SCC 483) (BharathaMatha), one of the substantial questions of law which arose was, whether, on the admitted long cohabitation of two persons, a legal presumption of a lawful wedlock is not established. While considering the same, the Hon’ble Supreme Court took note of Section 112 of the Evidence Act, which provides for a presumption of a child being legitimate and such a presumption can only be displaced by a strong preponderance of evidence and not merely by a balance of probabilities as the law has to lean in favour of an innocent child. Taking note of the fact that Section 16 of the Act was intended to bring about social reform by the conferment of a social status of legitimacy on a group of children, otherwise treated as illegitimate which was its prime object, it was also observed, illegitimate children who were born from a live-in relationship of their parents cannot inherit coparcenary property. In the said decision, reference was made to Jinia Kiotin vs. Kumar Sitaram Manjhi [(2003) 1 SCC 730), and Neelamma vs. Sarojamma [(2006) 9 SCC 612], to hold that a child born of void or voidable marriage is not entitled to claim inheritance in ancestral or coparcenary property, but is entitled only to claim a share in self-acquired properties of any of the parents. As already noted, the correctness of the aforesaid decisions is questioned in Revanasiddappa.
24. Thus, in BharathaMatha, there is recognition of the right of the children born from a live-in relationship to inherit the properties of their parents. In the aforesaid case, the status of children born out of a live-in relationship was also considered and equated with children born out of a void marriage (second marriage).
25. Reference could also be made to S.Khushboo vs. Kanniammal [(2010) 5 SCC 600), which placed reliance upon another decision in Lata Singh vs. State of U.P.[(2006) 5 SCC 475] (Lata Singh), to hold that live-in relationship is permissible only in unmarried major persons of heterogeneous sex, but if one of the said persons is married, then the offence of adultery under Section 497 of IPC would arise.
26. In fact nearly three decades ago, in S.P.S.Balasubramanyam vs Suruttayan alias Andali Padayachi and others [AIR 1992 SC 756] (Balasubramanyam), it was held that if a man and a woman live under the same roof and are cohabiting for a number of years, presumption that they lived as husband and wife arises. In the said case, it was held that the presumption was not destroyed by the circumstances and evidence proved in the said case.
27. In D.Velu Samy vs. D.Patchaiammal, [(2010) 10 SCC 469],(Velu Samy), the concept of “relationship in the nature of marriage” was considered by a two Judge Bench of the Hon’ble Supreme Court in the context of domestic violence Act,2005 (“D.V Act”, for short) and it was held to be akin to a common law marriage. According to the Hon’ble Supreme Court, common law marriages require that although not being formally married: (a) the couple must hold themselves out to Society as being akin to spouses; (b) they must be of legal age to marry; (c) they must be otherwise qualified to enter into a legal marriage including being married; (d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. It was opined that the expression relationship in the nature of marriage under the D.V. Act must also fulfil the above requirements, and in addition, the parties must have lived together in a `shared household’ as defined in Section 2(s) of the Act. That, merely spending weekends together or a one night stand would not make it a `domestic relationship’. It was further opined that “not all live-in relationships will amount to a relationship in the nature of marriage” to get the benefit of the D.V.Act. It was further observed that under the said Act, the expressions used is `relationship in the nature of marriage’ and not `live-in relationship’. The Court, in the garb of interpretation, cannot change the language of the statute. But, it was further observed that Indian Society is changing, and this change has been reflected and recognised by the Parliament by enacting the D.V. Act. In the said case, the matter was remanded to the Family Court to give a finding, as to, whether, the parties had lived together for a reasonably long period of time in a relationship which was in the nature of marriage.
28. In the context of live-in relationship being distinguished from what could be classified as relationship in the nature of marriage in Indra Sarma vs. V.K.V. Sarma [(2013) 15 SCC 755] (Indra Sarma), the issue was considered under the D.V.Act. Specifically, the question considered was whether disruption of a live-in relationship by failure to maintain a woman involved in such a relationship amounted to “domestic violence” within the meaning of Section 3 of D.V.Act. In the said case, a detailed exposition on the concept of marriage and marital relationship and relationship in the nature of marriage was made. It was observed that entering into marriage either under the Act or a Special Marriage Act or any other Personal Law applicable to the parties, is entering into a relationship of public significance, since marriage, being a social institution, many rights and liabilities flow out of that relationship. Thus, the concept of marriage gives rise to civil rights.
29. Referring to Pinakin Mahipatray Rawal vs. State of Gujarat [(2013) 10 SCC 48], it was observed that marital relationship means the legally protected marital interest of one spouse to another, which include marital application to another like companionship, living under the same roof, sexual relationship and the exclusive enjoyment of them to have children, their upbringing, services in the home, support, affection, love, liking and so on. But while considering Section 2(f) of the D.V.Act, wherein, it deals with relationship between two persons (of the opposite sex), who live or have lived together in a shared household through a relationship in the nature of marriage, it was observed that such a relationship has some inherent or essential characteristics of a marriage. Considering various permutations and combination of partners one of which was, “domestic relationship between an unmarried woman and a married adult male”, the question, whether, such a relationship is a relationship in the nature of marriage, so as to fall within the definition of Section 2 of the D.V.Act was considered. While considering the same, it was observed that the expression relationship in the nature of marriage is also described as a de facto relationship, marriage-like relationship, cohabitation, couple relationship, meretricious relationship (now known as committed intimate relationship) etc. It was observed that Courts and various Legislatures in various countries think that benefits external to only a certain class of persons on the basis of marital status is unjust, when the need for those benefits is felt by both unmarried and married cohabitants.
30. Reference was also been made to Thompson vs. Deptt of Social Welfare [(1994) 2 NZLR 369 (HC)], wherein the characteristics to determine a relationship in the nature of marriage have been enunciated which are as follows: (1) Whether and how frequently the parties live in the same house? (2) Whether the parties have a sexual relationship? (4) Whether the parties give each other emotional support and companionship? (4) Whether the parties socialize together or attend activities together as a couple? (5) Whether and to what extent the parties share the responsibility for bringing up and supporting any relevant children? (6) Whether the parties share household and other domestic tasks?
(7) Whether the parties share costs and other financial responsibilities by the pooling of resources or otherwise? (8) Whether the parties run a common household, even if one or other partner is absent for periods of time? (8) Whether the parties go on holiday together? (9) Whether the parties conduct themselves towards, and are treated by friends, relations and others as if they were a married couple?”
31. Referring to Lata Singh (supra), it was observed by the Hon’ble Supreme Court that the D.V.Act has been enacted to cover the couple having a relationship in the nature of marriage, so as to provide a remedy in civil law for the protection of women, from being victims of such relationship and to prevent the occurrence of domestic violence in the society. Thus, while the Hindu Marriage Act refers to provisions dealing with marriage and divorce of Hindus and thus, is personal law, under the D.V.Act, Parliament has recognised, a relationship in the nature of marriage, which is opposed to a live-in relationship simplicitor, for the purpose of providing succour to women in general who are victims of such relationship and who may be governed by different personal law.
32. At this stage itself, it may be made clear that the question whether a live-in relationship simplicitor would fall within the expression relationship in the nature of marriage is not the subject of controversy in the present case and hence, it is not necessary to delve on the said controversy, except observing that a live-in relationship is not akin to or is dissimilar to a relation in the nature of marriage. Thus, every live-in relationship cannot bear the stamp of relationship in the nature of marriage.
33. At this stage itself, it may be noted that the expression “marriage” has not been defined under the Act. Therefore, the question whether a relationship in the nature of marriage could fall within the nomenclature of marriage under Section 16 of the Act, as a result of which, children born out of such a relationship would also be entitled to rights in the property of their parents as per sub-section (3) of Section16 of the Act requires elaboration. In Indra Sarma, while considering the expression relationship in the nature of marriage under Section 2(f) of the D.V.Act, certain factors have been enumerated, which are not exhaustive, but give an insight to characterise such a relationship.
34. In the aforesaid case, reference was made to a judgment of the Privy Council in Andrahennedige Dinohamy vs. Wiketunge Liyanapatabendage Balshamy, (AIR 1927 PC 185), (AndrahennedigeDinohamy)wherein a generic proposition was laid that where a man and woman are proved to have lived together as husband and wife, the law presumes that they are living together in consequence of a valid marriage. Reference is also made to earlier judgments of the Hon’ble Supreme Court in Badri Prasad vs. Director of Consolidation, [(1978) 3 SCC 527](Badri Prasad) and Tulsa vs. Durghatiya, [(2008) 4 SCC 520] (Tulsa). Further, in Goka Chand vs. Parvin Kumari, [AIR 1952 SC 231] (Goka Chand), it has been observed that continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but it is a rebuttable one and circumstances may be brought on record which would weaken and destroy the presumption. It was further observed that it is for the Parliament to bring about a legislation so that the children born out of the relationship which are not in the nature of marriage may also be protected, i.e., those children who are born out of a live-in relationships simplicitor. It was further observed that “unfortunately, there is no express statutory provision to regulate such types of live-in relationships upon termination or disruption since those relationships are not in the nature of marriage.” Thus, the Hon’ble Supreme Court in Indra Sarma has made a categorical distinction between the live-in relationship simplicitor and live-in relationship which fall within the expression relationship in the nature of marriage.
35. A reading of the judgments of the Hon’ble Supreme Court in the aforesaid cases would lead to certain determinative factors to raise a presumption that parties have been living as husband and wife. In S.P.S.Balasubramanyam, the emphasis was on parties cohabiting together under the same roof for a number of years as husband and wife. In Velu Samy, it was observed that the relationship in the nature of marriage is akin to a common law marriage and the meaning of common law marriage from Wikipedia on Google was elaborated. But, it was emphasised that the couple must hold out to the society as husband and wife and they must have cohabitated together and held themselves out to the world as spouses for a significant period of time. In Indra Sarma, while highlighting the factors which determined the relationship in the nature of marriage, duration or the period of such relationship, shared household, pooling of resources and financial arrangements, domestic arrangements, sexual relationship, children, socialisation in public, and intention and conduct of the parties have been emphasised.
36. On a conjoint consideration of the above factors, what emerges is ultimately how the parties consider their relationship to be i.e., as husband and wife, even though the relationship may not have been formalised by a solemnisation of their marriage and secondly, as to how the society and public would perceive the relationship. If the parties held out to the society like they are living as husband and wife in a domestic arrangement, beget children, conduct their lives as husband and wife and are parents of the children by a long cohabitation, then society would accept such a relationship to be in the nature of marriage.
37. In fact, the doctrine factum valet quod fieri non debuit, which means “a fact cannot be altered by a hundred texts”, would apply in such a situation. Though, a Hindu marriage is a sacrament and has great importance in Indian Society, yet, when two parties who are in a domestic relationship and cohabit together and conduct themselves in a manner which are as per the guidelines enunciated by the Hon’ble Supreme Court in Indra Sarma, then the relationship is in the nature of marriage. Thus, if the parties are in a domestic relationship involving the attributes which have been set out above, then it must be held to be a relationship in the nature of marriage. Whether off-spring of such relationship would have to be protected under Section 16 of the Act is the next issue which required elaboration.
38. Thus, there is a need to balance the status and inheritance rights of children under Section 16 of the Act in the context of children born from void or voidable marriage, on the one hand, and relationship in the nature of marriage and live-in relationship on the other. Section 16 of the Act has been enacted with a view not to deprive children who are born outside the wedlock or marriage from inheriting properties from their parents when the same is not disposed of by a will and the rules of intestacy or intestate succession would apply. While a mother- child relationship exists between a woman and her child regardless of the status of child’s birth, a father-child relationship must be legally recognised so that the child has legitimacy. While a child born during the marriage; or a child conceived during the marriage but born after the death of father (posthumous) and the child who is adopted has the right to inherit both coparcenary and self acquired property as per Section 16 of the Act, a child born from a marriage which is void or voidable would be entitled to inherit only the properties of parents. Thus, even under Sec.16 of the Act, an illegitimate child is not entitled to inherit coparcenary or joint family property. But at the same time such illegitimate children are not completely barred from inheriting their parents’ properties. In fact, Section 16 of the Act confers legitimacy only to children born from void or voidable marriages, even though no child is responsible for the circumstances of his or her birth. “While children born from a valid marriage have right of inheritance, non-marital children have to jump through legal hoops in order to gain the right to inheritance from their parents particularly their father”. “Children of Men: Balancing the Inheritance Rights of Marital and Non-marital Children. Browne Lewis-visiting Professor, University of Pittsburg School of Law”.While considering Section 16 of the Act, it is noted that legitimacy is given to children born from void or voidable marriages. But in current times the question is really not about the status of children who have been born from a valid, void or voidable marriage but of children, who are born without there being a marriage between their parents. Thus, their status under Section 16 has to be ascertained vis-à-vis their right to inherit property of their parents depending on the legislative intent and dynamics of Indian society.
39. In India, marriage as a social institution is of utmost significance in society. The personal laws of the people of India prescribe conditions for a valid marriage whether, Hindu, Muslim, Christian or Parsi marriage. Further, there is Special Marriage Act, 1954 which also has conditions for a valid marriage under the said Act.
40. Next, it would be useful to understand the meaning of the expression “marriage” under the Act. Section 5 of the Act speaks of conditions of a valid Hindu marriage when solemnised. What is significant to note is that a Hindu marriage may be solemnised if the conditions are fulfilled. Further Section 7 of the Act, which deals with ceremonies of a Hindu marriage states, a Hindu marriage may be solemnised according to customary rites and ceremonies of either party thereto. It would reveal that when the said conditions are fulfilled and there is solemnisation, it would result in a valid Hindu marriage. Section 11 and 12 of the Act deal with void and voidable marriage. If conditions specified in clauses (ii), (iv) and (v) of Section 5 are infracted, it would be a void marriage i.e., a bigamous marriage, a marriage within the decrees of prohibited relationship or a marriage within sapinda relationship unless custom or usage of such parties thereto permit the latter two conditions. Section 12 deals with voidable marriage which is related to condition at clauses (ii) of Section 5. Section 16(1) states that notwithstanding that a marriage is null and void under Section 11 or where a decree of nullity is granted in respect of voidable marriage, any child of such marriage shall be legitimate. Also, as per Section 16(3) rights to or in the properties of the parents only are conferred on the children of such void or voidable marriage as if they are legitimate children.
41. In this regard it is also pertinent to bear in mind the aspect of solemnisation of marriage or performance of ceremonies as per Section 7 of the Act, and as to in what way the same would have a bearing while considering Section 16 of the Act. Before entering upon the said narrative at this stage, it would be useful to recall that when there is solemnisation of a marriage in accordance with Section 5 read with Section 7 of the Act, it would result in a valid Hindu marriage. But, if there is solemnisation of marriage as per Section 7 of the said Act, but contrary to Section 5, such a marriage would be either a void marriage as per Section 11 of the Act or voidable marriage under Section 12 of the Act. Thus in a case of valid, void or voidable marriage, Section 5,11 and 12 respectively of the Act would apply. All the three Sections no doubt refer to solemnisation of marriage which would be in terms of Section 7 of the Act. But, what would be the position if there is a domestic relationship between two persons who are Hindus, but, there is no marriage between them, in the sense, there is no solemnisation or performance of a Hindu marriage in terms of Section 7 of the Act? Such a domestic relationship for all practical purposes may be in compliance with Section 5 of the Act. In other words, the parties are competent to marry but they have not married or undergone the ceremony of a marriage. Having regard to Section 16(3), could the children born out of such a domestic relationship which is a relationship in the nature of marriage be treated on par with children born out of a void or voidable marriage and be conferred the same benefits under the said Section? In other words, the point is, as to, whether, children born from a relationship in the nature of marriage could be brought under the umbrella of Section 16(3) , so that they are also conferred the right to succeed to their parents’ properties on being conferred legitimacy. No doubt, Section 5, 11 and 12 uses the expression “solemnised” and when the same is read in the context of Section 7 it would mean a Hindu marriage being solemnised in accordance with the customary rites and ceremonies of either party thereto which may result in a valid marriage provided Section 5 of the said Act is also complied with. Now, if children born from a void or voidable marriage could be conferred legitimacy under Section 16 of the Act, whether children born from a relationship in the nature of marriage also be conferred the same benefits? In other words, does it mean the expression ‘marriage’ in Section 16 of the Act would mean only when there is solemnisation or performance of customary rites and ceremonies as per Section 7 of the Act or even a relationship in the nature of marriage dehorssolemnisation of marriage i.e., in the absence of customary rites or ceremonies of either party thereto being performed which could be construed as marriage under that Section?
42. In this regard it would be useful to note that Section 5 and Section 7 of the Act uses the expression “marriage may be solemnised between any two Hindus” and “a Hindu marriage may be solemnised” respectively. The use of the expression “may be solemnised” in both Sections are significant and have a wide connotation. In this regard, it is necessary to observe that if any of the conditions of Section 5 of the Act is not complied with by the parties but there is solemnisation of marriage in terms of Section 7 of the Act, the same would result in a void or voidable marriage in which event the children born out of such marriage are conferred legitimacy under Section 16 of the Act and are also entitled to succeed their parents’ separate properties. But, if the children are born to parties who are Hindus, who have not solemnised their marriage, i.e., the children are born to them even in the absence of ceremony of marriage being performed between their parents could they be deprived of their rights under Section 16 of the Act? If they are deprived, it could result in discrimination within the class of illegitimate children. When children born of void or voidable marriage are conferred legitimacy and given property rights under Section 16, similarly, children born out of the relationship of two persons who are competent to marry but have not undergone the ceremony of marriage or solemnisation of marriage and living in a domestic relationship must have the same rights as those children who are born from void or voidable marriages as such a relationship is in the nature of marriage. Merely because there has been no solemnisation of marriage or performance of ceremony as per Section 7 of the Act between the parties, their offspring cannot be deprived of benefits of Section 16 of the Act. The expression “may be solemnised” in Section 5 and Section 7 of the Act are significant. It may imply that even if there is no solemnisation of marriage between the parties in terms of Section 7 of the Act and if the parties are in a relationship in the nature of marriage and beget children, the same may be viewed as marriage under Section 16 of the Act and the benefits of Section 16 of the Act may have to conferred on the offspring of such a relationship. Such a relationship, would however, encompass all the characteristics of a relationship in the nature of marriage as enumerated by the Hon’ble Supreme Court in the case of Indira Sarma.
43. While on this discussion, another aspect has to be considered. As already noted, the parties may be competent to marry as per Section 5 of the Act but have not solemnised their marriage and have begotten children whether such a relationship which is a relationship in the nature of marriage could be read within the expression marriage under Section 16 of the Act so that the children born in the relationship in the nature of marriage are also extended the benign provision? The aforesaid position may be contrasted with a case where either of the parties is not competent to marry in terms of Section 5 of the Act, and there is a solemnisation of marriage, it would result in the marriage being either void or voidable marriage depending on the conditions in Section 5 being violated. However, the children of such void or voidable marriage are conferred legitimacy and have the right to succeed to their parents properties under Section 16 of the Act. Thus, when the children born out of a void or voidable marriage, have the benefit of Section 16 of the Act and legitimacy is bestowed in them; similarly, children born out of a relationship between two parties who are not competent to marry under Section 5 of the Act and the marriage has not been solemnised and their parents are in a domestic relationship may also be entitled to the benefits of Section 16 of the Act, as such a relationship between the parties would be a relationship in the nature of marriage. Hence, Section 16 of the Act may have to be extended to offspring born of such a relationship in the nature of marriage which may be included within the expression marriage.
44. This is because, parties who are not competent to marry under Section 5 of the Act may not wish to solemnisetheir marriage but beget children. Such children must also be recognised and they must also be conferred with the status and rights under Section 16 of the Act. Thus, it would be of utmost importance to understand the position of children who are born to parties who are not competent to marry but are in a domestic relationship and there has been no solemnisation of their marriage. When the parties are not competent to marry under Section 5 of the said Act and hence have not solemnised their marriage, in that, there is no ceremony of marriage between them and they beget children, Section 16 may have to apply to such children. This is subject to the parties being in a domestic relationship. In such a case, even if the parties not being competent to marry may be considered to be in a relationship in the nature of marriage.
45. The reasons for saying so, are not far to see. Firstly, when children of void or voidable marriage are conferred benefits of legitimacy and inheritance under Section 16 of the said Act, there is no reason not to confer the same benefit to children born to the said parties who, if, had solemnised their marriage would have resulted in void or voidable marriage and Section 16 would then have applied to children of such marriages. Thus, requirement of solemnisation of marriage cannot be the rationale or basis for conferring or depriving benefits on children under Section 16 of the Act. It is non- compliance or violation of Section 5 of the said Act by the parties resulting in a void or voidable marriages which confers on children of such marriage, protection under Section 16 of the Act as the Section now stands. If children born to parties, any of whom, has violated Section 5 of the Act and their marriage has been solemnised under Section 7 of the said Act, could have the protection and rights under Section 16 of the Act, then children born to parties, any of whom would have violated Section 5 of the said Act, had there been solemnisation of their marriage but in fact not solemnised as per Section 7 of the Hindu Marriage Act, cannot be discriminated against and must also have the same protection and rights under Section 16 of the Act, provided such children are born out of a relationship which is in the nature of marriage, the characteristics of which are set out above, as enunciated by the Hon’ble Supreme Court in Indra Sarma. Thus, the expression marriage in Section 16 may not be restricted to just performance or solemnisation of marriage. It is not one of form, but of substance. A marriage involves, inter alia, a domestic relationship which concept involves several attributes. But, when the parties are in such a domestic relationship but have not undergone the ceremony of marriage it would be a relationship in the nature of marriage. Thus, a relationship in the nature of marriage, being one, where there is no solemnisation of marriage between the parties who are in a domestic relationship, may be considered within the expression marriage under Section 16. Whether the expression marriage can be given a wider connotation and a purposeful, inclusive and expansive interpretation to include a relationship in the nature of marriage, in the context of Section 16 of the Act? The same may be necessary having regard to objects and purposes of Section 16 which has to be extended even to children born from a relationship in the nature of marriage. Further, when the parties may not be competent to marry under Section 5 of the said Act,
and if there has been a solemnisation of marriage under Section 7 which results in either a void or voidable marriage, in both the cases, children of such a marriage have been treated on par and are protected under Section 16. Solemnisation of marriage cannot hold the key or be the determinative factor for conferment of protection under Section 16 of the Act.
46. In holding so, I am not for a moment diminishing the institution of marriage by it being solemnized. In Indian society, marriage is an important social institution which would ultimately give rise to a family which is the basic unit of society which has utmost importance in Indian society. But at the same time, in India, there is a great shift in social thinking giving rise to myriad social relationships having a great impact on the institution of marriage as well as children born from such a relationship. The institution of marriage is under threat and children born from relationships without there being a marriage between their parents are on the rise. The children born out of such relationship must also be extended protection as per Section 16 of the Act just as the children born from void and voidable marriages. While the importance of a valid marriage under the personal laws or under Special Marriage Act, as the case may be, cannot be undermined, particularly in Indian society, at the same time, the protection of innocent children born out of a union of a man and a woman which is a relationship in the nature of marriage on account of domestic relationship existing inter se is a concern to be taken note of by the law makers. In this context, it is necessary to recall the objects and purposes of Section 16 of the said Act. One of the objects of Section 16 is to remove illegitimacy of children as well as to confer limited rights of inheritance on them. The Parliament, in fact, amended Section 16 in the year 1976. The object of the amendment was to confer a sense of belonging to children who acquire a status of legitimacy by fiction of law and by giving them right to inherit properties of their parents. In other words, there can be no distinction or discrimination made between legitimate or illegitimate children when it relates to inheritance of the properties of their parents irrespective of whether the marriage between their parents is valid, void or voidable.
46. In my view, such a benefit may have to be extended to children who are born to parties who are in a relationship in the nature of marriage, i.e., a domestic relationship having the aforementioned attributes even when there has been no solemnisation of marriage between their parents. If the parents of such children had married, it would be either a valid, void or voidable marriage depending upon Section 5 of the Act. But having regard to Section 16 of the Act, which is for the benefit of children of void and voidable marriages, it does not make a difference as to whether their parents had a void or voidable marriage in the context of inheritance of their parents’ property. Such being the legislative intendment the time has now come to extend the same benefits to children born to parents who are in a relationship in the nature of marriage i.e., in a domestic relationship and where their marriage has either not been solemnised as per Section 7 of the Act. Many a time, the parties may not undergo a ceremony of marriage as per Section 7 of the said Act if it would result in an infraction of Section 5 of the Act as it would lead to not only civil consequences but also penal for offences such as bigamy. Further, for the reasons best known to the parties, they may not choose to solemnize their relationship as per Section 7 of the Act and at the same time have a domestic relationship and beget children. In my view, such children should not be discriminated against. Hence, Section 16 may have to be so amended by Parliament so that, the children born to parties who have not solemnised their marriage but are in a domestic relationship or relationship in the nature of marriage are also entitled to benefits of Section 16 of the said Act. The attributes of such a relationship may be spelt out by legislation in the form of an amendment to Section 16 or in any other way.
48. Further, under Domestic Violence Act, a victim, who is necessarily a woman under the said Act, is entitled to remedies when she is in a relationship in the nature of marriage. Therefore, the offspring of such a relationship in the nature of marriage cannot be deprived of their status and rights particularly when Parliament has conferred rights to children of void or voidable marriage under Section 16 of the Act.
49. I hasten to add that the views expressed by this Court is not to give its imprimatur on relationship in the nature of marriage, where no solemnisation of marriage has occurred. But at the same time, Courts must be alive and conscious of the status and position of children being born from of such relationship so that the innocent are protected as per Section 16 of the Act or any other provision to be enacted by Parliament, just as they are protected when born from void or voidable marriages. One must be conscious of the fact that, Indian society is no longer static: while traditional practices, norms and thinking which are in the interest of society must prevail, one cannot lose sight of global influences leading to different kinds of social thinking and behaviour. While the institution of marriage and family are the bedrock of Indian society which has given Indian society its unique place globally, at the same time, the invasion of different kinds of social relationships into the Indian social fabric cannot be lost sight of.
50. In the circumstances, it is concluded that, when the parties are in a domestic relationship which is in the nature of marriage and it is found to be so, even in the absence of solemnisation of marriage as per Section 7 of the Act, the children born out of such a relationship also need legislative and social protection. Thus, it is for the Parliament to determine in what way such protection may be extended in the form of separate legislation or by amendment of Section 16 of the Act. This is because, the expression marriage has a specific connotation under Section 5 and 7 of the Act and therefore the same cannot be stretched or given a wider connotation by adding words to the expression marriage as it would be doing violence to the language and intendment of the said Section. Further, Courts have to be cautious and vary of interpreting such provisions in an elastic manner or with wide connotation as it may lead to confusing signals to Indian society which is already in a state of transition on account of global influences. Further, one cannot brush aside the fact that a Hindu marriage is a sacrament and has a unique place in society and a vast majority of Hindu society values the institution of marriage, legitimacy of children and rearing a family as part of ‘Samskara’ of human life, which cannot be done away with or brushed aside merely because some sections of the society may not have faith in such ideas or social institutions. Therefore, instead of Courts coming to the rescue of such innocent children, it is best left to the Parliament to consider ways and means in which they could have the protection of law.
Daksha Legal 