Legitimacy of Children under the Special Marriage Act

When a marriage is void or annulled, the law does not visit the defect on the children. Section 26 of the Special Marriage Act deems children of void marriages, and children of voidable marriages conceived before the decree, to be legitimate. It stops short, however, of giving them rights in the property of relatives beyond their parents. The provision mirrors section 16 of the Hindu Marriage Act, and the Supreme Court's decisions on that section guide its interpretation. This note covers section 26, related provisions and the leading cases.

1. The Three Rules

Figure 1: Section 26

• s.26(1), void marriages. Notwithstanding that a marriage is void under s.24, any child who would have been legitimate had the marriage been valid shall be legitimate, whether born before or after the 1976 amendment, whether or not a decree of nullity is granted, and whether or not the marriage is held void otherwise than on a petition under the Act.
• s.26(2), voidable marriages. Where a voidable marriage is annulled under s.25, any child begotten or conceived before the decree, who would have been legitimate had the marriage been dissolved instead of annulled, is deemed legitimate notwithstanding the decree.
• s.26(3), property. Nothing in s.26 gives such a child rights in or to the property of any person other than the parents, where, but for the Act, the child would have been incapable of acquiring them for want of legitimacy.
• Registered marriages. For marriages registered under Chapter III, s.18 deems children born after the ceremony and entered in the Marriage Certificate Book to be legitimate, with a similar proviso (Topic 7)

2. Property Rights

Figure 2: Supreme Court on the parallel s.16 of the Hindu Marriage Act

• Parents' property. The child inherits from both parents as a legitimate child, whether the parents die testate or intestate.
• Jinia Keotin v Kumar Sitaram Manjhi (2003). The Supreme Court held that children of a void marriage cannot claim a share in coparcenary property as if they were coparceners; their rights are confined to the property of their parents.
• Revanasiddappa v Mallikarjun (2023). A three-judge bench held that a child of a void or voidable Hindu marriage is entitled to the share of the deceased parent in Mitakshara coparcenary property, determined by a notional partition immediately before the parent's death, but does not become a coparcener by birth.
• Succession law. Where s.21 applies, the child's own succession, and succession to the parents, is under the Indian Succession Act; where s.21A applies, the Hindu Succession Act governs (Topics 8, 9)

3. Frequently Asked Questions

Is a child of a bigamous special marriage legitimate?

Yes. A bigamous marriage is void under s.24, but s.26(1) deems any child of it who would have been legitimate if the marriage had been valid to be legitimate, whether or not a decree of nullity has been passed.

Can a child of a void marriage inherit from grandparents?

Not on the basis of s.26 alone. Section 26(3) confines the child's rights to the property of the parents, where the child would otherwise have had no rights because of illegitimacy. The child may, however, take the deceased parent's share in property in which the parent had an interest.

Are children conceived after a decree annulling a voidable marriage legitimate?

No. Section 26(2) protects only a child begotten or conceived before the decree of nullity. A child conceived after the decree is not covered, since the parties were no longer married.

Does a child of a void Hindu marriage get a share in ancestral property?

Only through the parent. In Revanasiddappa v Mallikarjun (2023), the Supreme Court held that such a child is entitled to the share the deceased parent would have received on a notional partition immediately before death, but does not acquire a coparcenary interest by birth.

4. Related Topics

• Topic 12: Void Marriages, Section 24. When a marriage is void.
• Topic 13: Voidable Marriages, Section 25. When a marriage may be annulled.