Legitimacy of Children of Void and Voidable Marriages

Whether they are legitimate or not, a child's status has a significant impact on their lives. In fact, it establishes their way of life. The rights they grant, the power they hold, and the responsibility they bear all stem from their place in society. In general, it has been argued that children born out of valid marriages are legitimate, but those born out of invalid or void marriages (or just by a casual sexual interaction, extramarital affairs, or no formal marriage) are regarded as the illegitimate children. In the past, society and individual laws have already drawn a boundary between the two. Being different typically entails difficulties, lack of social acceptance, discrimination, discrepancy, etc. Legitimate offspring, on the other hand, enjoy the proper status in society, are in charge of specific matters, are entitled to succession, etc., in contrast to illegitimate children. However, this is untrue; all children born from null or voidable marriages are not considered to be illegitimate.

What is Legitimacy of a Child?

The status that a child acquires upon birth as a result of a valid marriage or a union that meets the requirements for a Hindu marriage outlined in Section 5 of the Hindu Marriage Act, 1955, or, to put it another way, the status of the child born to legally married parents and the child conceived prior to their divorce. The legal status of a child determines their rights and obligations. It demonstrates how children should be treated in society. The child is given the father's title and last name. It grants the child the right to inherit both the father's and ancestors' property.

There is a distinction between valid and voidable marriages in the Hindu Marriage Act of 1955. Children born out of void or voidable marriages are granted legitimacy and property rights under Section 16 of the Act.

Void Marriages and Legitimacy of Children Born Out of it

Annulment Even if all the rituals and ceremonies were performed, a void marriage is not a marriage. In simple terms, a void marriage is one that occurred between two people who are legally not allowed to get married (may be because of prohibited relationship) but they married, which violates clauses (1), (4), or (5) of section 5 of the Hindu Marriage Act of 1955. A void marriage is void-ab-initio, which means it was nonexistent from the beginning. A court order is not necessary to declare a marriage null and void because it never existed. Therefore, even if the court issues an annulment decree, this merely declares the marriage null and void and does not make it so.

Legitimacy of Children

Children born out of void marriages are treated as legitimate children under the provisions of Section 16 of the Hindu Marriage Act of 1955 and the Special Marriage Act, regardless of whether the marriage has been declared null and void by the court or not. However, they only inherit the property of their parents, not any inherited property.

Voidable Marriages and legitimacy of children born out of it

A voidable marriage is one that can be prevented by either party by petitioning to have it declared void; however, if neither party files the petition, the marriage is still considered valid until one of the parties files it. Any negative consequences of a legitimate marriage result from a voidable marriage if it is not avoided. The ramifications of a lawful marriage flowing from an unavoidable voidable marriage prohibit the parties from being married to the other person, and they would be punished with the crime of bigamy if they did.

Legitimacy of Children

The Hindu Marriage Act of 1955 and the Special Marriage Act, both address the legitimacy of children born out of voidable unions in the following circumstances:

  • Children born or conceived before the order of nullity is issued would be considered legitimate, as though the decision had terminated the marriage rather than annulled it.

  • Children born from a voidable union that is not declared void, annulled, or avoided by either party to the union will have the same legal standing as children born from valid unions.

  • Children born out of a voidable union that has been declared void, annulled, or unavoided by either party to the union would be legitimate, but they could only inherit the possessions of their parents and no other people. They are not granted coplanar rights.


The standing of children from null and voidable marriages has gradually formalized. Previously, only the offspring of voidable marriages were regarded as legal under English law. The Hindu Marriage Act of 1955 also granted legal status to the children of invalid marriages. Following that, the Marriage Laws Amendment Act of 1976 amended Section 16 to make it clear that the status of legitimacy for the children of such a marriage did not require the declaration of a void marriage.

Frequently Asked Questions

Q1. What is legitimacy and its examples?

Ans: Legitimacy is a formally acknowledged right to rule. People who fall under a power, like a government, are said to recognize it as legitimate. German sociologist Max Weber distinguished between traditional, charismatic, and rational-legal forms of legitimacy.

Q2. What is void and voidable marriage?

Ans: A competent court must pronounce a marriage void. Children from a null marriage are treated as legitimate children. When a marriage is declared voidable, the children born as a result are considered to be illegitimate, but the Supreme Court has abolished this distinction, so no child can be referred to as illegitimate.

Q3. What is the rule of legitimacy?

Ans: A common definition of legitimacy in political science and sociology is the conviction that a law, institution, or leader has the authority to rule. An individual's assessment of the propriety of a hierarchy between a rule or ruler and the subject, as well as the subordinate's duties to the rule or ruler, is involved.

Q4. How does the Hindu Marriage Act provide for the legitimacy of children of voidable marriage?

Ans: A void marriage is distinguished from one that is voidable by the Hindu Marriage Act of 1955. According to Section 16 of the Act, children of all null and voidable marriages are considered legitimate but only have the right to inherit their parents' property not the ancestral property.

Q5. Are children born out of void marriage legitimate?

Ans: Yes. Additionally, according to the Bench, a child born from a void or voidable marriage is recognized as a legitimate child under both the Special Marriage Act and the Hindu Marriage Act, which is a personal law for Hindus.

Updated on: 16-Jan-2023

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