To understand the question, we must know the law.
Point to be considered about Second Marriage is a person is in relation without taking divorce and is not a widower, than what is stated herein is applicable. If Second Marriage is legal than children born out of wedlock have equal rights that of first marriage.
This is pertaining to Hindu succession and testator who died without making a WILL. Such succession is governed by Hindu Succession Act,1956.
Who is Hindu? According to Hindu Succession Act it applies to : (a) to any person, who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
(b) to any person who is a Buddhist, Jaina or Sikh by religion; and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
The Explanation says.—The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:—
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
It also applies to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs and included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.
Pondicherry: this Act shall apply to the Renouncants of the Union territory of Pondicherry.” [Regulation 7 of 1963, sec. 3 and First Sch. (w.e.f. 1-10-1963).]
(a) “agnate”—one person is said to be an “agnate” of another if the two are related by blood or adoption wholly through males;
(c) “cognate” — one person is said to be a cognate of another if the two are related by blood or adoption but not wholly through males;
(d) the expression “custom” and “usage” signify any rule which having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;
(e) “full blood”, “half blood” and “uterine blood”—
(i) two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife, and by half blood when they are descended from a common ancestor but; by different wives;
(ii) two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands;
Explanation.— In this clause “ancestor” includes the father and “ancestress” the mother;
(f) “heir” means any person, male or female, who is entitled to succeed to the property of an intestate under this Act;
(g) “intestate”—a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect;
Section 6 gives equal right to daughters in coparcenary property governed by Mitakshara law.
This Act shall not apply to any property succession to which is regulated by the Indian Succession Act, 1925, by reason of the provisions contained in section 21 of the Special Marriage Act, 1954;
General rules of succession in the case of males.—The property of a male Hindu dying intestate shall devolve :
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
Order of succession among heirs in the Schedule.—Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.
- Distribution of property among heirs in class I of the Schedule.—The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:—
Rule 1.— The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share. Rule 2.— The surviving sons and daughters and the mother of the intestate shall each take one share. Rule 3.— The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share. Rule 4.— The distribution of the share referred to in Rule 3—
(i) among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters gets equal portions; and the branch of his predeceased sons gets the same portion;
(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.
- Distribution of property among heirs in class II of the Schedule.—The property of an intestate shall be divided between the heirs specified in any one entry in class II of the Schedule so that they share equally.
- Order of succession among agnates and cognates.—The order of succession among agnates or cognates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder: Rule 1.— Of two heirs, the one who has fewer or no degrees of ascent is preferred. Rule 2.— Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent. Rule 3.— Where neither heirs is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously.
- Computation of degrees.—
(1) For the purposes of determining the order of succession among agnates or cognates, relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or both, as the case may be.
(2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.
(3) Every generation constitutes a degree either ascending or descending.
- Property of a female Hindu to be her absolute property.—
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.—In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
- General rules of succession in the case of female Hindus.—
(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,—
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),—
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.
- Order of succession and manner of distribution among heirs of a female Hindu
The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestates property among those heirs shall take place according to the following rules, namely:—
Rule 1.—Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously.
Rule 2.—If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate’s death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate’s death.
Rule 3.—The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) to section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death.
GUR NARAIN DAS AND ANOTHER Vs. GUR TAHAL DAS AND OTHERS 952 AIR 225, 1952 SCR 869 Supreme Court agree to three other well-settled principles, these being firstly, that the illegitimate son does not acquire by birth any interest in his father’s estate and he cannot therefore demand partition against his father during the latter’s lifetime; secondly, that on his father’s death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son(s) with a right of survivorship and is entitled to enforce partition against the legitimate son(s); and thirdly, that on a partition between a legitimate and an illegitimate son, the illegitimate son takes only one-half of What he would have taken if he was a legitimate son.
In Jinia Keotin & Ors. vs Kumar Sitaram Manjhi & Ors. Supreme Court held that ,So far as Section 16 of the Act is concerned, though it was enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provide in Sub-section (3) by engrafting a provision with a non obstante clause stipulating specifically that 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.” In the light of such an express mandate of the legislature itself, there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in Sub-section (3) of Section 16 of the Act but also would attempt to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself
Supreme Court in Bharatha Matha & Anr. Versus R. Vijaya Renganathan & Ors. 17 May, 2010 it is evident that in such a fact-situation, a child born of void or voidable marriage is not entitled to claim inheritance in ancestral coparcenery property but is entitled only to claim share in self acquired properties, if any.
Revanasiddappa & Anr vs Mallikarjun & Ors dated 31 March, 2011 passed by Supreme Court expressed a different view and held that, “ Right to property is no longer fundamental but it is a Constitutional right and Article 300A contains a guarantee against deprivation of property right save by authority of law.
- In the instant case, Section 16(3) as amended, does not impose any restriction on the property right of such children except limiting it to the property of their parents. Therefore, such children will have a right to whatever becomes the property of their parents whether self acquired or ancestral.
- For the reasons discussed above, we are constrained to take a view different from the one taken by this Court in Jinia Keotin (supra), Neelamma (supra) and Bharatha Matha (supra) on Section 16(3) of the Act.
- We are, therefore, of the opinion that the matter should be reconsidered by a larger Bench and for that purpose the records of the case be placed before the Hon’ble the Chief Justice of India for constitution of a larger Bench.”
Madras High Court SUMAN BAI & ORS. Petitioner(s) VERSUS GANGABAI TRYAMBAKRAO KATRE & ORS on 28 March, 2014 held that, “ a son born through the second marriage is a legitimate son only for the purpose of claiming share in the father’s property and he is not entitled to claim any share in the ancestral property of the father and therefore, the plaintiff, being the daughter of the first defendant, through the first wife, is entitled to claim half share in the property.”
While issue is still pending recently Supreme Court in SUMAN BAI & ORS. VERSUS GANGABAI TRYAMBAKRAO KATRE & ORS. Same issue arose as to whether the share has been given in the grandmother’s property to the children born out of the lady who was stated to be the second wife and thus, the children should not inherit a share in the ancestral property? Also pointed out that, the said children from a second marriage would have a share is pending consideration before this Court in C.A. No. 2844/2011- Ravanasiddappa & Anr. vs. Mallikarjun & Ors, (2011) 11 SCC 1.
Discussion and Analysis:
( Views here are personal and based on research and reading of law. Without prejudice to reference to larger bench and not otherwise. The same is not final and binding)
Hits and Misses of 2011 Judgment :
Let us read the operative para again:
“On a careful reading of Section 16 (3) of the Act we are of the view that the amended Section postulates that such children would not be entitled to any rights in the property of any person who is not his parent if he was not entitled to them, by virtue of his illegitimacy, before the passing of the amendment. However, the said prohibition does not apply to the property of his parents. Clauses (1) and (2) of Section 16 expressly declare that such children shall be legitimate. If they have been declared legitimate, then they cannot be discriminated against and they will be at par with other legitimate children, and be entitled to all the rights in the property of their parents, both self-acquired and ancestral. The prohibition contained in Section 16(3) will apply to such children with respect to property of any person other than 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. Very often a dominant group loses its primacy over other groups in view of ever changing socio- economic scenario and the consequential vicissitudes in human relationship. Law takes its own time to articulate such social changes through a process of amendment. That is why in a changing society law cannot afford to remain static. If one looks at the history of development of Hindu Law it will be clear that it was never static and has changed from time to time to meet the challenges of the changing social pattern in different time.”
The Hindu Law is based on usage and custom. Norms may have changed but not the custom and Law. Our law and hindu custom and religion prohibit bigamy.
Section 494 in The Indian Penal Code
- Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
(Exception) —This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.
Hindu Marriage Act
6 [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.]
While passing Judgment Court overlooked provisions of Sec 16(3) and while expressing its opinion about changing times tried to rewrite legislation and thereby encroached upon. If one reads said Sec 16(3) it specifically excludes rights of illegitimate child of ancestral properties. Moreover, though we have progressed and there is a change in social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today is a wrong conception adopted by court while passing the Judgment which is of relevance and affecting majority of faith who are governed by this law without enactment or debate in Parliament. It is an expression of thought without any proposition, intention or scheme of enactment. The law never legitimize illegitimacy which is criminal, illicit, dishonest, banned, unlawful, forbidden either by law or by custom. If that is the case morals and ethics shall have no scope to sustain.
In Bhavnagar University vs Palitana Sugar Mill Pvt. Ltd. & Ors on 3 December, 2002 three Judges Bench of Supreme Court held that, “ It is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, section by section and words by words. Recourse to construction or interpretation of statute is necessary when there is ambiguity, obscurity, or inconsistency therein and not otherwise. An effort must be made to give effect to all parts of statute and unless absolutely necessary, no part thereof shall be rendered surplusage or redundant. True meaning of a provision of law has to be determined on the basis of what provides by its clear language, with due regard to the scheme of law. Scope of the legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. In other words, statutory enactments must ordinarily be construed according to its plain meaning and no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute.”
If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. [See Rishabh Agro Industries Ltd. vs. P.N.B. Capital Services Ltd. (2000 (5) SCC 515)]. `The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in N.Narasimhaiah and Ors. v. State of Karnataka and Ors. etc. (1996 (3) SCC 88). In State of Karnataka and Ors. v. Nanjudaiah and Ors. (1996 (10) SCC
It is also a well-settled principle of law that the decision on an interpretation of one statute can be followed while interpreting another provided both the statutes are in pari materia and they deal with identical scheme.
Madras Bar Association Versus Union of India & Another A Constitution Bench of Supreme Court has recently held that Courts should not place reliance on decisions without discussing as to how the factual situation of the matter fits in with the factual situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. s Court further held as under: “12. The rival pleas regarding rewriting of statute and casus omissus need careful consideration. It is well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said. “Statutes should be construed, not as theorems of Euclid”, Sundara Rao (Dead) & Ors. v. State of T.N. & Ors., (2002) 3 SCC 533 (Para 9) “but words must be construed with some imagination of the purposes which lie behind them”. (See Lenigh Valley Coal Co. v. Yensavage [218 FR 547] .) The view was reiterated in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama [(1990) 1 SCC 277 : AIR 1990 SC 981] . xx xx xx 14. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd. [(2000) 5 SCC 515] ) The legislative casus omissus cannot be supplied by judicial interpretative process…
Another aspect was overlooked by court was statement of object and reasons for enactment of Hindu Succession Act. The general rule of devolution is specified in Class I and Class II. Unless it gives rights to illegitimate children specifically in ancestral property it cannot be granted by order of expression of court.
When the matter will be argued at length there may be possibility that different view is expressed may change. But here I have made an attempt to give broader outline of existing laws and constitutional provision which is also governed by pith and substance.
Though this is just not blog but a research paper its bit long and I appreciate readers for giving their valuable time in reading it.