SC reserves verdict on question if non-marital children can claim right over parents’ ancestral properties

The Supreme Court on Friday reserved its verdict on a 2011 plea pertaining to the vexatious legal issue whether non-marital children were entitled to a share in the ancestral property of their parents under Hindu laws. A bench comprising Chief Justice D Y Chandrachud and justices J B Pardiwala and Manoj Misra heard submissions of several lawyers on a plea which is pending since 2011.

The top court will also decide the question whether the share of such children is limited only to the self-acquired property of their parents under Section 16(3) of the Hindu Marriage Act. These questions were referred to a larger bench by a two-judge bench of the apex court on March 31, 2011.

“The question which crops up in the facts of this case is whether illegitimate children are entitled to a share in the coparcenary (ancestral) property or whether their share is limited only to the self acquired property of their parents under Section 16(3) of the Hindu Marriage Act,” the bench had said while referring the case to a larger bench.

The court had said the provision makes it very clear that a child of a “void or voidable marriage” can only claim rights to the property of his parents, and no one else. The bench had disagreed with the earlier findings of the top court that such children will have no right in ancestral properties of their parents.

“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… in a changing society law cannot afford to remain static…,” it had said.

According to Hindu law, in a void marriage, the parties do not have the status of husband and wife. As per the statute, husband and wife have the status in the voidable marriage. In a void marriage, no decree of nullity is required to annul the marriage. While, in a voidable marriage decree of nullity is required.