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Why did the petitioners move the HC?

In this case, the children’s parents solemnized their marriage in 2011, while the father was still legally married to his first wife. Their father had remarried because his first wife was unwell, but said he had her consent to do so.

However, the main complaint of the petitioners was that repeated attempts to include the children’s names in the panchayat file were unsuccessful.

The Government of Himachal Pradesh contended that Section 4(a) of the Special Marriage Act, 1954, read with Rule 21 of the HP Panchayati Raj General Rules, 1997, does not permit this. Section 4(a) specifies that neither party to the marriage can have a spouse alive at the time of the marriage as a pre-condition for solemnization of marriage under the SMA, while rule 21 deals with the pariwar register and the registration of births, deaths and marriages .

What is a pariwar registrar?

According to Rule 21, after the government establishes a sabha by notification under Section 3(1), a pariwar register, containing the names and particulars of all persons residing in the village of that area, should be prepared for each gram sabha.

The provision adds that the register should be prepared by the panchayat secretary and verified by the panchayat inspector of the block concerned.

In the October 17 ruling, the court said, “There is nothing in this rule that prohibits the entry of the names of children of a second marriage.”

She added that Rule 21(5) of the 1997 rules, in fact, says that the gram panchayat secretary is required to include registration of births and deaths under the provisions of the Registration of Births and Deaths Act, 1969.

What does the 1969 Act say?

Section 8 of the Births and Deaths Registration Act outlines the obligations of certain persons, such as the head of the household or next of kin, to register the birth or death and provide details to the relevant authorities, verbally or in writing.

Targeted persons also include licensed physicians or their representatives in a hospital, health center, maternity or nursing home or other similar institution, heads of households in residential structures and jailers responsible for births and deaths in prison, among others.

Section 7 requires this information to be provided to a registrar appointed by the State under whose jurisdiction the relevant area is located.

But first, what is an illegitimate or invalid marriage?

There are certain conditions for the solemnization of a valid Hindu marriage listed in Section 5 of the Hindu Marriage Act, 1955.

The first is that neither party can have a spouse alive at the time of the marriage. Second, both parties should be able to give “valid consent” to the marriage. They cannot be unhealthy or suffer from a disorder that makes them unfit for procreation or marriage, such as insanity.

Thirdly, the male must be at least 21 years old, while the female must be of age, i.e. 18 years or older.

The law also prohibits marriages with lineal ascendants, such as parents or grandparents, among other relatives, unless custom permits, or between those persons who have common ancestry dating back five generations on the father’s side and three generations from the mother’s side.

It further defines null — invalid marriages ab initioor from their very beginning — and voidable marriages, that is, those which contravene the conditions laid down in Section 5, and are annulled, by a decree, at the instance of one of the parties.

Under Section 11, where there is a living spouse or the parties are closely related, the marriages are void and do not exist under the law.

Voidable marriages, Section 12 says, can be annulled for reasons such as non-consummation of the marriage due to impotence of the partner, inability to consent or consent obtained by fraud or force, among others.

Simply put, invalid marriages refer to both voidable and void marriages.

What happens to the children born of such marriages?

Section 16 of the HMA confers legitimacy on children born of invalid marriages. It says: “Any child of such marriage which 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 , and whether it is or not. a decree of nullity is made in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than by an application under this Act.”

How have the courts interpreted this provision?

In Jinia Keotin vs Kumar Sitaram Manjhi (2003), a two-judge bench of the Supreme Court held that children of void or illegal marriages, simply because they are protected by Section 16, should not be treated equally with children born of legal marriages, for the purposes of parental inheritance. ancestral property.

Years later, the supreme court took a more benevolent view in its 2011 ruling Revanasiddappa Vs. Mallikarjunwhere a two-judge tribunal ruled that illegitimate children are entitled to all rights to the parent’s property, both self-acquired and ancestral. In doing so, he said that “with the changed social norms of legitimacy in every society, what was illegitimate in the past may be legitimate today.”

Later, a three-judge bench headed by Chief Justice DY Chandrachud on 1 September 2023 ruled that children born out of void or voidable marriages can claim a share of their family property. However, the bench also clarified that such children cannot claim their right to the ancestral property of anyone else in the Hindu Undivided Family (HUF) except their parents.

The basis for the SC’s 2023 ruling was laid down by the top court in a 2018 two-judge judgment. In Union of India Vs. VR Tripathithe court said that a child born of a “void marriage” is legitimate.

“The legitimacy of such a child is a matter of public policy to protect the child born out of a void marriage suffering the consequences of illegitimacy. Though a marriage may be void, but a child born of such a marriage is still treated as legitimate by sub-section (1) of Section 16,” the court said in that case.

The court also specified that such a child can only have a right to the parents’ property and not to other relatives.

What did the court decide now?

In the October 17 judgment, the Himachal HC, relying on the law laid down by the Supreme Court in a series of decisions, said, “The concept of legitimacy arises from social consensus,” which is shaped by various social groups. He emphasized that Hindu law is not static and has evolved over time.

He said the HMA is a “beneficial piece of legislation” and must be interpreted in a way that promotes the objectives of the law and brings about social reforms, pointing out that the preamble of the Constitution focuses on equality of status, opportunity and dignity.

In this case, the court said it was undisputed that the children were born of the second marriage, celebrated while the first husband was alive.

Admitting the plea, the court said, “Petitioners are living beings. The fact that they are there must be recognized in law. Therefore, their names must be entered in the record (of) the case” within five weeks from the date of the order.

Expert opinion

Speaking to ThePrint, Advocate on Record (AOR) Namit Saxena said, “The Indian Penal Code punishes bigamy or remarriage under Section 494 of the IPC and Section 82 of the Bharatiya Nyaya Sanhita (BNS) with up to seven years. imprisonment and a possible fine. Although there are exceptions for certain religions, these provisions consider the second marriage to be void ab initioor null from the very beginning.”

As a result, children born of such marriages face an environment of problems related to maintenance, inheritance, succession and even social acceptance, among others.

Saxena added. “For example, the child might face problems with school admission forms or when they need to apply for insurance or a transfer certificate. Such circumstances might compel them to take their father’s name, and in the case of the father’s other marriage, trouble might arise. However, the courts have endeavored to remedy this issue in recent judgments such as Smita Maan Vs. regional passport officer (2023), where the single judge bench of the Delhi High Court held that a passport can be issued without the names of the parents in certain cases.”

Saxena also quoted Revanasiddappa Vs. Mallikarjun to reiterate the law laid down by the supreme court that legitimate and illegitimate children are treated as equals in the eyes of the law when it comes to the ancestral and self-acquired property of the parents.

(Editing by Sanya Mathur)