Report No. 15
43. Third view accepted.-
There is undoubtedly great force in this reasoning. But, then, our Parliament had quite recently occasion to go into the question of the status and rights of children born of void marriages, in connection with two pieces of legislation, the Special Marriage Act, 1954, and the Hindu Marriage Act, 1955, and on both these occasions, it has adopted the third view and recognised the rights of children of void marriages to succeed to the properties of their parents as if they were legitimate.
Section 26 of the Special Marriage Act provides that where a decree of nullity is granted in respect of a marriage which is either void or voidable, any child begotten before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of being declared null and void shall be deemed to be their legitimate child. Then follows a proviso which limits the rights of succession to the properties of the parents. Section 16 of the Hindu Marriage Act is on the same lines as section 26 of the Special Marriage Act and confers similar rights on the children of void marriages.
Now the question is, whether there are sufficient grounds for our departing from a decision taken by the legislature quite recently on a matter which is as much social as it is juristic. We are unable to find any justification for treating children born of marriages prohibited by the proposed legislation differently from those born of marriages prohibited by the Special Marriage Act, 1954, and the Hindu Marriage Act, 1955. We have accordingly provided that they should also be entitled to succeed to the properties of their parents as if they were legitimate,