Report No. 59
2.33. Section 16-Legitimacy of children.-
Under section 16 of the Hindu Marriage Act, the children of a void marriage are deemed to be legitimate, but only if certain conditions are satisfied. The section also deals with voidable marriages, but, we are not concerned with those marriages. As the section stands now, where a decree of nullity is granted in respect of any marriage under section 11 (i.e. in respect of a void marriage), any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if the marriage had been dissolved instead of having been declared null and void, shall be deemed to be their legitimate child, notwithstanding the decree of nullity.
Under the proviso to the section, this section does not confer, on any child of a marriage which is declared null and void any rights in or 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. (We are referring, only to that part of the section which relates to a void marriage, as already stated). Now, the first proposal is that the condition that a decree of nullity must have been granted in order that the section may apply, should be removed. The second, and the more controversial, proposal is that this section should apply only if, at the time of the act of intercourse resulting in the birth (or at the time of the celebration of the marriage, where the marriage follows the act,) both or either of the parties reasonably believed that the marriage was valid.