Report No. 59
In the light of the above, we recommend that this part of section 16(1) should be revised as follows:-
Revised section 16(1), in part
"16(1). Legitimacy of children of void and voidable marriages.-Notwithstanding that a marriage is null and void on any ground specified in section 11, any child is born before or after the commencement of the age had been valid, shall be legitimate, whether such child is born before or after the commencement of the Hindu Marriage (Amendment) Act, 19741, and whether or not a decree of nullity is granted in respect of that marriage2, under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act".
It is considered unnecessary to limit the operation of the new sub-section to children conceived before the decree of nullity is passed (where the case is one in which such a decree is passed). Of course, after a decree of nullity, cohabitation would, in most cases cease, if it has not already ceased, and conception after the decree is, therefore, very unlikely.
The rest of section 16 could be recast as follows:-
"(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in this section shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to 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".
1. The words "of such marriage" could be added after the words "any child", if necessary.
2. Children of voidable marriages to be dealt with in separate sub-section.