The mother, the child and the marriage

Are children of invalid marriages entitled to property rights? This is a difficult question with which our courts are constantly bogged down. In 1955, when Hindu marriages were rendered monogamous, a whole range of women and children who were out of the pale of strict monogamy were denied their rights to maintenance and succession and were rendered destitute. However, a slender ray of hope prevailed for illegitimate children, under Section 125 of the Criminal Procedure Code, where they could claim a meagre amount of maintenance. Women in bigamous marriages could also be granted maintenance under this provision by interpreting this socially beneficial legislation in a sensitive manner, and by expanding the boundaries of law. Various high courts and the Supreme Court in a number of rulings had held that strict proof of a valid marriage is not necessary while awarding maintenance to destitute women.

For instance, in Rameshchandra Daga vs Rameshwari Daga the Supreme Court, while awarding maintenance to a woman whose husband had challenged the validity of their marriage, conceded that despite codification and introduction of monogamy, the ground reality had not changed much; Hindu marriages, like Muslim marriages, had continued to be bigamous. The court had further commented that though such marriages are illegal as per the provisions of the codified Hindu law, they are not "immoral" and hence a financially dependent woman cannot be denied maintenance on this ground.

But two subsequent rulings, Savitaben Somabhai Bhatiya vs State of Gujarat and more recently, D. Velusamy vs D.Patchaiammal denied women in bigamous marriages maintenance under this beneficial provision. The later ruling which referred to women in such relationships as "mistresses" and "concubines" created a controversy. But a final ruling on this issue is still awaited as another bench of the Supreme Court comprising of Justice G.S. Singhvi and A.K. Ganguly referred the matter to a larger bench in Chanmuniya vs Virendra Kumar Singh Kushwaha. This ruling has recommended that a broad and expansive interpretation should be given to the term "wife" to include those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance — so as to fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125. Ironically, this positive ruling did not receive much attention.

While the controversy over whether a second wife is entitled to maintenance rages on, the law has been more favourable to children of such marriages. In 1976, through an amendment to the Hindu Marriage Act, children born in marriages that were void were held to be "legitimate" and were granted the right of maintenance and inheritance. But discrimination against them continued. The Supreme Court ruling in Jinia Keotin vs Kumar Sitaram Manjhi and Bharatha Matha vs R. Vijaya Renganathan gave a constrained view and had held that a child born in a void marriage was not entitled to claim rights in ancestral property.

Hence it is refreshing to note that the recent ruling in Revanasiddappa vs Mallikarjun, delivered on March 31 by Justice G.S. Singhvi and A.K. Ganguly, dissented from the above two rulings, and has upheld the rights of the child of a void marriage to the ancestral property of the father. While referring the issue to a larger bench in the context of the contradictory positions between the earlier rulings and the present one, the bench held: "The Court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone. Such legislation must be given a purposive interpretation to further and not to frustrate the eminently desirable social purpose of removing the stigma on such children."

The Court relied upon Article 39(f) of the Constitution, which mandates that all children must be given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and must be protected against moral and material abandonment. 

While this is a positive interpretation, a ruling of the Supreme Court in 1961, in Singhai Ajit Kumar vs Ujayarsingh provides us with an even wider scope for property rights of illegitimate children. This ruling has held that even under the shastric law, an illegitimate son of a "mistress" or "concubine" is entitled to the rights of survivorship as he becomes a coparcener along with the legitimate son — and, hence, is entitled to enforce a partition after the father's death. It is in this context that judgements such as D. Velusamy (cited above) which, at one level, use the terms of Brahminical Hindu law, referring to women as "mistresses" and "concubines", but at the same time deny them the protection awarded to them under the shastric law by using a Western model of monogamy, need to be condemned as regressive and backward looking.

 

The writer is a matrimonial lawyer and director of Majlis, a Mumbai-based NGO which provides legal advocacy and litigation help to women

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