Yes, you can, and the child of second marriage property rights that the first family says do not exist come from section 16 of the Hindu Marriage Act, 1955. Sub-section (1) makes the child of a marriage that was void because a spouse was living a legitimate child, and sub-section (3) gives that child rights in the property of the parents, though not in the property of anyone else. The Supreme Court settled what "property of the parents" means for a joint family house on 1 September 2023 in Revanasiddappa v Mallikarjun (three judges, 2023 INSC 783): you take a share in the portion that would have fallen to your father on a partition deemed to take place immediately before his death, and an equal share with the other children in his self-acquired flat and bank balances, but you are not a coparcener and you take nothing from your grandfather, your uncles or the first wife. The line that children of a second marriage get nothing was never the law for self-acquired property and, since 2023, is not the law for ancestral property either.
Part of the family and divorce law practice at S Jain & Attorneys, Bangalore.
This post is for the adult child of a void or annulled marriage whose Hindu father has died. The mother's own claims, and a daughter's coparcenary right by birth in a valid marriage, have their own guides, linked below.
| Kind of property | Can the child of the void marriage claim? | Authority | How the share is worked out |
|---|---|---|---|
| Father's self-acquired flat, bank balances, shares | Yes, as a Class I heir, equally with the other heirs | HMA s.16(1) and (3), HSA ss.8 and 10, Revanasiddappa (2023) | One share each to the widow, every child and his mother if alive |
| Father's share in ancestral or coparcenary property | Yes, in the share notionally allotted to the father just before his death | HSA s.6(3) and its Explanation, Revanasiddappa conclusions (ix) and (x) | Deemed partition first, then the father's share passes under ss.8 and 10 |
| Coparcenary property as a coparcener by birth | No | Revanasiddappa paragraphs 50 and 51 | No share in the deemed partition itself |
| Grandfather's, uncle's or the first wife's own property | No | HMA s.16(3) | Nothing, unless a will gives it |
| Mother's own property | Yes, fully | HSA s.3(1)(j) proviso and s.15(1)(a) | Sons and daughters take first |
Am I legitimate if my parents' marriage was void?
Yes, by statute, and you do not need a decree from any court to say so. Section 16(1) of the Hindu Marriage Act provides that notwithstanding that a marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid shall be legitimate, whether born before or after the 1976 amendment, "and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act".
Section 11 makes a marriage void when it breaks any of three conditions in section 5: clause (i), neither party has a spouse living, clause (iv), the parties are not within the degrees of prohibited relationship, and clause (v), they are not sapindas of each other. A second marriage during a subsisting first marriage falls under clause (i), and section 17 repeats it: such a marriage is void and the penal provisions on bigamy (see the bigamy guide) apply to the parent, never to you. A voidable marriage under section 12 remains a marriage until annulled, so section 16(2) supplies the legitimacy there, for children begotten or conceived before the decree.
Three limits matter. First, the Act must apply to your parents: section 2 applies it to Hindus, Buddhists, Jainas and Sikhs, and its Explanation makes a child, legitimate or illegitimate, of two Hindu parents a Hindu. Second, section 16 presupposes a marriage. The Supreme Court recorded in 2023, summarising the 2011 referring judgment, that the benefit is available only when there is a marriage and that marriage is void or voidable, so a relationship in which no ceremony was ever performed is outside it. Third, section 16(3) limits the property consequences, the subject of the rest of this post.
What does "property of the parents" mean, and does it include the ancestral house?
It means the property that belonged to your father himself, and after Revanasiddappa v Mallikarjun that includes the share of a joint family house that would have come to him on a partition deemed to take place immediately before his death, but not the house as a whole, and not membership of the coparcenary that owns it.
The 2023 judgment answered a reference made in 2011, when a two-judge bench doubted three earlier decisions. Jinia Keotin v Kumar Sitaram Manjhi (2003), followed in Neelamma v Sarojamma (2006) and Bharatha Matha v R. Vijaya Renganathan (2010), had read section 16(3) to give such a child the parents' self-acquired property and nothing in ancestral or coparcenary property, which is the reading the first family is repeating to you. The bench of Chief Justice Chandrachud, Pardiwala J and Manoj Misra J answered the reference the other way, so those decisions can no longer be cited for that proposition.
The reasoning runs through section 6 of the Hindu Succession Act, 1956 as substituted in 2005. Under section 6(3), when a Hindu dies after 9 September 2005 his interest in Mitakshara joint family property passes by succession and not by survivorship, and the coparcenary property "shall be deemed to have been divided as if a partition had taken place", the Explanation fixing his interest as the share he would have got on a partition immediately before his death, whether or not he could have claimed one. Conclusion (ix) then states the rule that governs your claim.
Key takeaway. Revanasiddappa v Mallikarjun, conclusion (ix): "Once the share of the deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs including the children who have been conferred with legitimacy under Section 16 of the HMA 1955, will be entitled to their share in the property which would have been allotted to the deceased upon the notional partition, if it had taken place."
Two further conclusions fence the right in. Conclusion (iv) reads the legitimacy conferred by section 16 into the definition of "related" in section 3(1)(j) of the Succession Act, so you are related to your father by legitimate kinship. Conclusion (x) harmonises the Succession Act with section 16(3), so you have no rights in the property of anyone other than your parents. Paragraph 51 settles the coparcenary point: a coparcener acquires an interest by birth, giving a section 16 child such an interest "would certainly affect the rights of others apart from the parents of the child", and so the child is entitled "to rights in or to the absolute property of the parents and no other person". Paragraph 55 confines the ruling to Mitakshara joint families, which most Hindu families in Karnataka are.
How is my share in the ancestral property actually calculated?
By a two-step sum: first a deemed partition to find your father's own share, then a division of that share among his heirs, you included. Here is the arithmetic in words, as an illustration of the rule and not as advice on any real family.
Take a father who married a first wife validly and had two children by her, then married your mother while the first wife was alive, and had you. He died in 2024 without a will, his own parents having died before him, leaving an ancestral house held as coparcenary property with the two children of the first marriage, coparceners by birth under section 6(1) whether sons or daughters, and a self-acquired flat with bank balances in his sole name.
Step one, the deemed partition of the house. Immediately before his death the coparceners were the father and the two children of the first marriage, so the house is notionally divided into three and the father's share is one third. You take nothing at this step, because you are not a coparcener, and your mother takes nothing, because there was no marriage in law. In its own illustration in paragraph 43 the Supreme Court also gave the widow a share at this step, so the father, his widow and the child of the valid marriage took a third each before the father's third was divided. Whether a wife takes a share on a partition between her husband and his children depends on the family's school of Hindu law and custom, which changes the fractions but not the method. In Shantawwa v Kasturi (Karnataka High Court, Dharwad Bench, 13 October 2023) the first wife took an equal share at this step under the Bombay school, the father's share came to one eighth, and each of the second wife's three daughters got one eightieth.
Step two, succession to the father's third. That third is the "property of the parent" for section 16(3). It passes under section 8 to the Class I heirs: the widow, the two children of the first marriage and you. Section 10 gives the widow one share and each child one share, so each of the four takes a quarter of the third, which is one twelfth of the house. The children of the first marriage end up with five twelfths each (their own third plus a twelfth), the first wife with one twelfth, and you with one twelfth.
The flat and the bank balances are simpler. They were your father's absolute property, so the whole passes under sections 8 and 10 to the same four heirs in equal quarters. Your mother, again, takes nothing as a widow, because she was not one in law.
| Heir in the illustration | Ancestral house | Self-acquired flat and bank balances |
|---|---|---|
| Child of the first marriage (each of two) | 5/12 (one third on the deemed partition plus one twelfth by succession) | 1/4 |
| First wife (the widow) | 1/12 (more where her school of law gives her a share at the partition step) | 1/4 |
| Child of the void second marriage (you) | 1/12 | 1/4 |
| Second wife (your mother) | Nothing | Nothing |
Three cautions on the sum. If your father died before 9 September 2005, the old section 6 applied and his interest passed by survivorship unless a female Class I heir survived him, so the sum needs separate advice. If he left a will, section 30 of the Succession Act lets a Hindu will away both self-acquired property and his undivided coparcenary interest, so you take what the will gives unless the will falls. And you could not have forced a partition in his lifetime: the Supreme Court left undisturbed the referring bench's view that such children cannot ask for partition while the parent is alive.
The three findings that decide the size of the claim, in one place.
Legitimate by statute
Section 16(1) of the Hindu Marriage Act makes a child of a void marriage legitimate whether or not any court ever declared the marriage void, and whenever the child was born.
Heir, not coparcener
The child takes a share in the father's own portion of joint family property, found by a partition deemed to happen just before his death, and gets no share by birth.
Parents only
Section 16(3) confines the right to the property of the parents. Grandfather, uncles and the first wife are outside it unless a will says otherwise.
Equal in self-acquired property
The father's own flat and bank balances go in equal shares: the child of the void marriage takes one, the same as each child of the first marriage and the widow.
Child of second marriage property rights: does it matter whether I am a son or a daughter, or when I was born?
No to both. Section 16(1) speaks of "any child" whenever born, and section 10 of the Succession Act gives the surviving sons and daughters one share each, so a daughter of the void marriage takes the same twelfth and the same quarter as a son would in the illustration above. What she does not get is the coparcener status that section 6(1) gives a daughter of a valid marriage, so the equal-by-birth right in the daughter coparcenary guide is not hers, just as it is not a son's.
Section 11 avoids only marriages solemnised after the Act commenced on 18 May 1955, so a child of a pre-1955 second marriage, which the Supreme Court noted in paragraph 51 was not void under the old Hindu law, does not need section 16 at all.
Can my mother inherit from my father, and can I inherit from my mother?
Your mother takes nothing from your father's estate as his widow, because in law there was no marriage, and the widow's share under section 10 belongs to the widow of a marriage the law recognises. Her separate claims, to maintenance, to domestic violence relief and to anything given by will or gift, are covered in the second wife maintenance guide and the guide on when a second marriage is legal and who has rights.
From your mother you inherit fully, on two footings. The proviso to section 3(1)(j) of the Succession Act deems even illegitimate children related to their mother, and section 16 in any case makes you legitimate. Section 15(1)(a) then puts sons and daughters, with the husband, first in line to a female Hindu's property, and because the marriage was void your father was not her "husband" for that clause, so her property goes to her children alone in the first instance. Section 16(3) does not cut this down: her property is a parent's property.
What about maintenance, while he was alive and now from his estate?
While your father was alive, section 20 of the Hindu Adoptions and Maintenance Act, 1956 bound him to maintain his legitimate or illegitimate children, a minor child could claim under section 20(2), and section 20(3) extended the duty to an unmarried daughter unable to maintain herself from her own earnings or property. Section 144(1)(b) of the Bharatiya Nagarik Suraksha Sanhita, 2023, the successor to section 125 of the old Code, lets a Magistrate order monthly maintenance for a legitimate or illegitimate child unable to maintain itself, and clause (c) covers an adult child unable to do so through physical or mental abnormality or injury. Those orders end with the father.
After his death the claim shifts to the estate. Section 22 of the Adoptions and Maintenance Act binds the heirs of a deceased Hindu to maintain his "dependants" out of the estate they inherit, and section 22(2) entitles a dependant who has obtained no share by will or on intestacy to maintenance from those who take it, in proportion to their shares. Section 21 lists a minor son and an unmarried daughter as dependants, and separately a minor illegitimate son and an unmarried illegitimate daughter, so the claim exists whichever label the first family attaches to you. It matters most where a will has given you nothing: you may be unable to touch the property and still be maintained out of it while a minor or, as a daughter, unmarried. Section 23 leaves the amount to the court, which weighs the net estate after debts, any provision in the will, your wants and your means.
How do I prove I am his child?
With documents in which your father himself acknowledged you, first, and with a DNA test only if those are missing or disputed. In Raja Gounder v M. Sengodan (19 January 2024, 2024 INSC 47), the Supreme Court's own application of Revanasiddappa, the sons of two women whose marriages to the deceased were not established still obtained a preliminary decree of partition, because a registered mortgage deed he had executed described them as his sons, a joint patta stood in the names of the father and all three sons, and the electoral rolls matched. The Court treated his own documents as decisive on status, partitioned the land first between the father and the son of his valid marriage, then divided the father's notional share equally among all four children, and recorded that proof of status was the condition precedent for the 2023 rule.
For a Bengaluru family the equivalents are a birth certificate naming him as father, school forms he signed, a passport or Aadhaar application that named him, his nomination forms, any registered document calling you his child, and the invitation card, photographs and hall or temple receipts of your parents' marriage, because the ceremony must be proved as well as the parentage. When courts order a DNA test and what a refusal means is in the guide on DNA and paternity tests. One trap needs naming. If your mother was married to another man when you were born, section 116 of the Bharatiya Sakshya Adhiniyam, 2023 (the old section 112 of the Evidence Act) makes birth during a valid marriage conclusive proof that you are that man's legitimate child unless non-access is shown, which cuts against a claim on your biological father's estate.
Where do I file, what do I file, and by when?
You file a suit for partition and separate possession in the civil court, not the Family Court, and the main clock is twelve years from the date you learnt you were being excluded. For property within the city, section 3(3) of the Bangalore City Civil Court Act, 1979 makes the City Civil Court the principal civil court of original jurisdiction over all civil suits arising within the City of Bangalore, other than those cognizable by the High Court or the Court of Small Causes. Property outside the city goes to the district civil court where it lies. Section 7 of the Family Courts Act, 1984 gives the Family Court declarations of legitimacy (Explanation (e)) and maintenance (Explanation (f)), but not a partition suit against the first family. The civil court can decide your status as an issue in the partition suit itself, as it did in Raja Gounder, which is why our family law practice runs the two together.
The plaint asks for a preliminary decree declaring your share, a final decree dividing the property by metes and bounds or by sale, and, where the first family is in possession, separate possession of your share, with a temporary injunction application under Order 39 rules 1 and 2 of the Code of Civil Procedure, 1908 filed alongside. The mechanics and the court fee are in the partition suit guide.
Limitation runs on three articles of the Schedule to the Limitation Act, 1963. Article 110 gives a person excluded from joint family property twelve years, from when the exclusion becomes known to the plaintiff, to enforce a right to share in it. Article 65 gives twelve years for possession of immovable property based on title, from when the defendant's possession becomes adverse. Article 58 gives only three years for a suit "to obtain any other declaration", from when the right to sue first accrues, so a bare declaration of status can be barred long before the partition claim is. For bank balances and shares, the succession certificate guide explains the instrument the family will ask for and how you object.
Deadline warning. Twelve years under Article 110 from the day you learn you are being excluded, twelve under Article 65 from when the family's possession turns adverse, three under Article 58 for a bare declaration. Fix the date of your knowledge in a lawyer's notice before the family's version of it hardens.
Can the first family sell the property before I sue?
They can sign a sale deed, but they cannot sell your share, and once your suit is on the file section 52 of the Transfer of Property Act, 1882 stops any transfer from affecting your rights under the eventual decree. Until you sue, an heir who sells "the whole" property conveys only what that heir owns, the point made in the guide on one legal heir selling jointly inherited property, and a karta who sells joint family property has to justify it, as the karta guide explains. Section 52 runs from the date the plaint is presented, its Explanation says so, which fixes the order of events: notice, suit, and with the plaint an injunction application under Order 39 rule 1(a), which lets the court restrain a party where property in dispute is in danger of being alienated. Section 52 needs a non-collusive suit in which a right to the immovable property is "directly and specifically in question", which a partition suit that schedules the house is and a maintenance petition is not, so never rely on a maintenance claim to freeze a sale.
Does the same rule apply under the Special Marriage Act, and to Muslims and Christians?
Under the Special Marriage Act, 1954, yes, word for word. Section 26 of that Act, substituted by the same 1976 amendment, makes a child of a marriage null and void under section 24 legitimate, deems legitimate a child begotten or conceived before a voidable marriage is annulled under section 25, and in sub-section (3) confers on such a child no "rights in or to the property of any person, other than the parents". A child of a second marriage registered under that Act therefore has the same claim against the parent's estate and the same wall against everyone else's, though how that estate devolves depends on the succession law applying to a couple married under that Act and needs its own advice.
The Hindu Marriage Act does not apply to Muslims, Christians, Parsis or Jews (section 2), so section 16 gives their children nothing. Muslim personal law has its own rules on which children are legitimate, which this post does not summarise. For Christians and Parsis the Indian Succession Act, 1925 governs intestate succession and has no provision like section 16, so the position of a child of a void marriage under it needs specific advice.
What will the first family argue against me, and what is the answer?
Five arguments come up, and four have answers in the statute. "You are not a coparcener" is true and irrelevant, because you claim as an heir to your father's share. "Section 16(3) bars you from the joint family property" was the Jinia Keotin reading, and Revanasiddappa answered the reference against it. "Your parents were never married" is the one that can succeed, because section 16 needs a marriage that is void, not the absence of one, so the ceremony has to be proved. "You are not his child" is met by his own documents, as in Raja Gounder, and by a DNA test if needed. "You waited too long" turns on Article 110, so your own record of when you learnt of the exclusion matters.
Where these cases actually turn is rarely on the law and almost always on two dates and one document: the date of your parents' marriage ceremony with something to show it happened, the date you learnt the family was excluding you, and one document in your father's hand or name that calls you his child. The 2023 judgment gives the entitlement. Raja Gounder was won on a mortgage deed, a patta and two electoral rolls, not on the law. What I tell people at the first meeting is to spend the first month collecting paper rather than drafting the plaint, and to send no reply to the family's messages about a "settlement" until the paper is in hand, because a reply gets quoted back later as an admission.
What the first family will say, and the short answer to each.
Not a coparcener
True, and beside the point. The claim is as an heir to the father's share, which Revanasiddappa v Mallikarjun confirms in conclusions (ix) and (x).
Never married at all
The one argument that can win. Section 16 needs a marriage that is void, so the ceremony must be proved with cards, photographs and witnesses.
Not his child
Answered by his own documents, as in Raja Gounder, where a registered mortgage deed, a joint patta and electoral rolls proved the sons' status.
Too late
Twelve years under Article 110 run from when the exclusion became known, so the family will try to push that date back. Keep your own record of it.
Step by step: what to do in the first ninety days
- Get certified copies of the death certificate and your birth certificate, every document in which your father named you as his child, and whatever proves your parents' marriage ceremony.
- List every property: encumbrance certificates and khata or tax extracts for the immovables, and what you know of bank accounts, shares and insurance. Mark which items were ancestral and which he bought himself.
- Draw the family tree as on the date of death: the surviving coparceners, the widow, every child of both marriages, and whether his mother was alive.
- Send a notice through an advocate asserting your status under section 16 and your share, demanding partition, and recording the date on which you learnt of your exclusion.
- File the partition suit in the City Civil Court, or the district court where the property lies, with an Order 39 injunction application, and object in any succession certificate or probate proceeding the family has started.
- If you are a minor or an unmarried daughter left with nothing, file the maintenance claim against the estate under section 22 of the Adoptions and Maintenance Act in parallel.
- Sign no release deed, family settlement or "no objection" for a sale or a khata transfer until the shares are agreed in writing and the money has actually been paid.
Mistakes that cost children of a second marriage their share
The costliest is the release deed. A registered release in favour of the first family, signed for a small sum "to avoid trouble", conveys your share, and a suit to set it aside for fraud or pressure runs on a three-year clock under Article 59 of the Limitation Act from when the facts entitling you to cancel it first become known. The second is the unregistered cash settlement: money changes hands, nothing is written, and years later the family denies both while still holding the property. The third is waiting for the "right time", usually until a sale is announced, by which point a buyer is involved, the twelve years under Article 110 may have run, and the family has had years to build a paper trail that says you were never one of them.
Common mistake. Treating the ancestral house and the self-acquired flat as one claim. They are two sums with two answers: a share out of the father's notional portion in the one, and an equal share with every other child in the other. A settlement that offers "a share in the house" and stays silent on the flat and the bank balances leaves your larger claim on the table.
Frequently Asked Questions
Can a child of a second marriage claim ancestral property in India?
Yes, but only a share in the portion that would have come to the parent on a partition deemed to take place immediately before the parent's death, under section 6(3) of the Hindu Succession Act read with section 16(3) of the Hindu Marriage Act, as the Supreme Court held in Revanasiddappa v Mallikarjun (2023). The child is not a coparcener and gets no share by birth.
Is a child born of a void marriage legitimate under Hindu law?
Yes. Section 16(1) of the Hindu Marriage Act, 1955 makes the child legitimate whether or not a decree of nullity was ever passed, and section 16(2) covers a child begotten or conceived before a voidable marriage is annulled.
Does the second wife inherit from the husband if the marriage was void?
No, not as his widow, because there was no marriage in law. She may have maintenance or domestic violence remedies, which are separate questions, and her child's inheritance right is unaffected by her position.
Can I claim a share during my father's lifetime?
No. The Supreme Court has recorded that such a child cannot ask for partition while the parent is alive and can exercise the right only after the parent's death. Maintenance during his lifetime is a different claim, under section 20 of the Hindu Adoptions and Maintenance Act and section 144 of the BNSS.
What if my father left a will giving everything to the first family?
Section 30 of the Hindu Succession Act lets him will away his self-acquired property and his undivided coparcenary interest, so you take only what the will gives unless the will is set aside. As a minor son or an unmarried daughter you can still claim maintenance from the estate under section 22 of the Hindu Adoptions and Maintenance Act.
Which court hears the case in Bengaluru?
The City Civil Court for property within the city, under section 3(3) of the Bangalore City Civil Court Act, 1979, and the district civil court where the property lies outside it. The Family Court can declare legitimacy and award maintenance but does not hear a partition suit.
How long do I have to file?
Twelve years from when you came to know you were being excluded from the joint family property under Article 110 of the Limitation Act, 1963, twelve years for possession based on title under Article 65, and only three years for a bare declaration under Article 58.
Does the same rule apply if my parents married under the Special Marriage Act?
Yes. Section 26 of the Special Marriage Act, 1954 is in the same terms as section 16 of the Hindu Marriage Act, including the limit to the property of the parents.
This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.
