There Should Be A Void Or Voidable Marriage To Attract Legitimacy To The Illegitimate Child: Bombay Hc

Published on 14 Jun 2017 by Team

‘A one night consensual affair cannot be called a marriage. Merely having a physical relationship between man and a woman also cannot be called as a marriage. Any physical intimacy/sexual intercourse which took place by choice or by chance or by accident is not a marriage’, said the Court

The Bombay High Court recently ruled that the benefit of Section 16 of the Hindu Marriage Act is available to an illegitimate child, who is born to parents who have undergone the rituals/formalities of performance of marriage which may be void or voidable.

Justice Mridula Bhatkar passed the judgment on June 7 after reserving it on March 16.

Case Background

The case at hand deals with the claim for pensionary benefits of one Jaydeo Pawar, who died on July 7, 2003.

His first wife Draupada and second wife Indubai claimed right over Jaydeo’s pension along with their respective children.

While this suit was pending before the high court, Draupada Pawar died on February 2, 2006. Following this, her children contested the case against Indubai.

Draupada’s first appeal was allowed and it was held that she and her children have a right over Jaydeo’s property and Indubai is not entitled to receive family pension.

This order was challenged by Indubai before the apex court, which, in turn, observed that even though the marriage between Indubai and Jaydeo is void, the child born out of that marriage will be entitled to claim over his property.

Thus, the apex court directed Indubai to file a review petition before the high court in order to examine this issue.


Indubai’s lawyer MB Deshmukh submitted that if Draupada’s marriage date is to be believed, then it would mean that she got married to Jaydeo at the age of 11, which would nullify her claim that she married Jaydeo first.

After submitting the birth certificate of Indubai’s daughter Shubhangi, Deshmukh argued that Shubhangi had right in the property of her father even though Indubai’s claim was rejected on grounds of a void marriage.

Appearing for the respondents, CM Kothari argued that the petition was not maintainable. He submitted that Jaydeo Pawar has made a will on May 17, 2002, in which he specifically mentioned that “Indubai was debauched and was in relationship with one Bhiku B. Chavan and out of that relationship, she delivered a daughter i.e., Shubhangi. In the will, it is stated that Indubai was not his legally wedded wife and Shubhangi is not his daughter”.

Pawar bequeathed his entire property to Draupada and his two sons.


Upon examination of Section 16 of the Hindu Marriage Act, Justice Bhatkar observed;

“Either customary solemnization of marriage is required or performance of legal formality is a condition precedent to label that relationship as a marriage. For example, a one night consensual affair cannot be called a marriage. Merely having a physical relationship between man and a woman also cannot be called as a marriage. Any physical intimacy/sexual intercourse which took place by choice or by chance or by accident is not a marriage. Thus, though physical relationship is a vital part of the marriage, it is still something more than that. Basically what is required to call such relationship as a marriage is firstly the intention and desire of the parties to marry and to give status to each other as a husband and wife. The manifestation of such desire is through performance of certain religious rites or legal formalities. There is legal, social or customary requirement of solemnization between the parties. The duration of marital status also is one of the determining factors to render them a status of a married couple”.

“Section 16 was introduced to recognise the right of an illegitimate child in the father’s property. There is no doubt that in an ancestral property of the father, illegitimate child cannot claim any share. However, he has equal right, like his legitimate sibling, in the property of his father. The Legislature has taken a progressive step by introducing this section with a view to remove certain social anomalies in respect of the child born to a couple in the void marriage.”

The court noted that any physical relationship between a man and a woman is not contemplated as a marriage under S.16 of the Act and accepted Kothari’s submission that there should be a void or voidable marriage to attract legitimacy to the illegitimate child.

However, after examining the facts of this case, the court observed that Indubai stayed with deceased Jaydev Pawar for a long time after they got married on June 22, 1981. Shubhangi’s birth certificate records Pawar as her father.

“Under such circumstances, it can very well be said that in the present case, there is evidence to show that marriage was solemnised between Jaydeo and Indubai and the child was born.”

Once it is found that there is overall evidence of long stay of Indubai and Jaydeo, and void marriage between them, then whether Indubai was married earlier, twice or not and whether petitioner Shubhangi was born before Indubai’s earlier marriage was legally dissolved are immaterial issues, the court said.

Thus, it was held that benefit of legitimacy is available to Shubhangi under Section 16 and, to that extent, the review petition was allowed.

News Source- LiveLaw

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