Under the general law, a legitimate child is one who is born in a lawful wedlock, and a child born out of a void marriage is necessarily a bastard. This would normally cause great hardship to a child (for no fault of his own), and therefore, S. 16 provides that notwithstanding that a marriage is null and void under Section 11, any child of such a marriage, who would have been legitimate if the marriage had been valid, is to be considered to be a legitimate child. It is immaterial whether or not a decree of nullity is granted in respect of that marriage under the Act, and whether or not the marriage is held to be void otherwise than on a petition under this Act.
It has also been provided that if a decree of nullity is granted in respect of a voidable marriage under S. 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, is to be deemed to be their legitimate child, notwithstanding the decree of nullity.
Thus, by a fictio juris (legal fiction), a child born of a void or voidable marriage is deemed to be the legitimate child of his parents. The effect of this fiction is that for all purposes, including rights of inheritance and succession, such a child is to be regarded as a legitimate child of the parents.
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ADVERTISEMENTS:
It may be noted that S. 16 comes into play only if a marriage is proved to have taken place between a man and a woman, but which is otherwise null and void under S. 11. So, when there has been no marriage at all, S. 16 cannot be involved, and legitimacy cannot be conferred on any child. (Sudarshan Karir v. The State, A.I.R. 1988, Del. 368)
Following the above principles, the Madras High Court has reiterated that a child born out of a void marriage will share the father’s property equally with the other legitimate children. (Margabandhu v. Kothandarama, A.I.R. 1984, Mad. 270)
The Kerala High Court has clarified that S. 16 applies to marriages that are void under S. 11 of the Act (which applies only to those marriages which are solemnized after the Act came into force). Therefore, children born of a second marriage which is void and which was solemnized prior to the Act are not entitled to be legitimised. (P.E. Kanapravan v. K. Devi, A.I.R. 1989, Ker. 279)
ADVERTISEMENTS:
In the above case, it was also held that S. 16 is not violative of Article 14 of the Constitution.
However, an important exception is also made to the above rule. The effect of the exception is that what has been stated above does not confer upon any child of a marriage which is null and void, or which is annulled by a decree of a nullity, any rights in or to the property of any person, other than the parents, in any case where, but for 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.