Section 16 HMA: Legitimacy of children of void and voidable marriages
Hindu Marriage Act, 1955
Section 16 HMA at a Glance
Section 16 HMA gives legal legitimacy to children of void marriages under Section 11 HMA and annulled voidable marriages under Section 12 HMA. Section 16(3) HMA limits the property rights conferred by legitimacy under Section 16 HMA to the parents' property.
Section 16 HMA Bare Act Text
16. Legitimacy of children of void and voidable marriages.
(1) Notwithstanding that a marriage is null and void under section 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 (68 of 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 section 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-section (1) or sub-section (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 section 12, 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.
Amendments to this section
- Subs. by s. 11, ibid., for s. 16 (w.e.f. 27-5-1976).
Section 16 HMA in Simple Words
Section 16 HMA protects the legitimacy of children born of void marriages (marriages invalid from the start) and annulled voidable marriages (marriages cancelled by a court order). Section 16 HMA was substituted with effect from 27 May 1976.
Section 16(1) HMA covers a marriage that is null and void under Section 11 HMA, which applies to marriages solemnized after the Act began that break the living spouse, prohibited relationship, or sapinda conditions in Section 5(i), (iv), or (v) HMA. Any child of that void marriage who would have been legitimate if the marriage had been valid is legitimate. This rule applies whether the child was born before or after the Marriage Laws (Amendment) Act, 1976 began, whether or not a court grants a decree of nullity (a court order declaring the marriage void) under the HMA, and whether or not the marriage is held void outside a petition under the HMA.
Section 16(2) HMA covers a voidable marriage in which a court grants a decree of nullity under Section 12 HMA (on grounds such as lack of consummation due to impotence, contravention of Section 5(ii) HMA mental capacity conditions, consent obtained by force or fraud, or pregnancy by another person at the time of marriage). Any child begotten or conceived before the decree of nullity is made is deemed to be the legitimate child of the parties despite the decree, provided the child would have been their legitimate child if the marriage had been dissolved instead of annulled on the date of the decree.
Section 16(3) HMA places a limit on property rights. Neither Section 16(1) HMA nor Section 16(2) HMA gives a child of a void marriage or of a marriage annulled under Section 12 HMA any rights in or to the property of any person other than the parents, in any case where, without the passing of the HMA, the child could not have possessed or acquired those rights because of not being the legitimate child of the parents.
When Section 16 HMA Applies
- For Section 16(1) HMA, the marriage is null and void under Section 11 HMA, and the child would have been legitimate if the marriage had been valid.
- Legitimacy under Section 16(1) HMA applies whether the child was born before or after the Marriage Laws (Amendment) Act, 1976 began, and whether or not a decree of nullity is granted.
- For Section 16(2) HMA, a decree of nullity is granted for a voidable marriage under Section 12 HMA, and the child was begotten or conceived before the decree was made.
- Under Section 16(2) HMA, the child must be one who would have been the legitimate child of the parties if the marriage had been dissolved instead of annulled on the date of the decree.
- Under Section 16(3) HMA, legitimacy conferred by Section 16(1) or Section 16(2) HMA does not confer rights in the property of any person other than the parents where the child could not otherwise have acquired those rights.
Example of Section 16 HMA
When Section 16 HMA Does Not Apply
- Property of any person other than the parents, in any case where without the HMA the child would have been incapable of possessing or acquiring rights in that property because of not being the legitimate child of the parents (Section 16(3) HMA).
- Under Section 16(1) HMA, a child who would not have been legitimate even if the void marriage under Section 11 HMA had been valid.
- Under Section 16(2) HMA, a child who was not begotten or conceived before the decree of nullity under Section 12 HMA was made, or who would not have been the legitimate child of the parties if the marriage had been dissolved instead of annulled on that date.
FAQs on Section 16 HMA
What is Section 16 HMA?▼
Section 16 HMA declares children of void marriages under Section 11 HMA and children begotten or conceived before a decree of nullity in voidable marriages under Section 12 HMA to be legitimate. At the same time, Section 16(3) HMA restricts the property rights conferred by Section 16 HMA so that no rights are conferred in the property of any person other than the parents.
Is a court decree of nullity required for a child of a void marriage to be legitimate under Section 16(1) HMA?▼
No. Section 16(1) HMA makes a child of a marriage void under Section 11 HMA legitimate whether or not a decree of nullity is granted under the HMA and whether or not the marriage is held void outside a petition under the HMA.
Does Section 16(1) HMA cover children born before the 1976 amendment?▼
Yes. Section 16(1) HMA explicitly applies whether the child was born before or after the commencement of the Marriage Laws (Amendment) Act, 1976.
Does Section 16(3) HMA give children of void or annulled marriages rights in property belonging to relatives other than the parents?▼
No. Section 16(3) HMA states that nothing in Section 16(1) or Section 16(2) HMA confers rights in or to the property of any person other than the parents, where without the HMA the child could not have acquired those rights.
When is a child of a voidable marriage deemed legitimate under Section 16(2) HMA?▼
When begotten or conceived before the decree of nullity. Where a court grants a decree of nullity under Section 12 HMA, Section 16(2) HMA deems a child begotten or conceived before the decree legitimate if the child would have been legitimate had the marriage been dissolved instead of annulled on that date.
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Sources: Bare Act Text, Hindu Marriage Act, 1955 ·