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Hindu Marriage Act, 1955 : Section 16 as amended by Amendment Act 68 of 1976-Pre-conditions under S. 12 done away with-No need for declaration of earlier marriage as nullity- Consequentially as if the marriage had been valid, the child shall be legitimate whether it was born before or after the commencement of the Amending Act, 1976-Hence the child is entitled to her share in her father’s property. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1542 of 1975. =, 1996( 2 )SCR 322, 11996( 2 )SCC 567, 1996( 2 )SCALE382 , 1996( 5 )JT 664

PETITIONER:

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SMT. GURNAM KAUR & ANR.

Vs.

RESPONDENT:
PURAN SINGH & ORS.

DATE OF JUDGMENT: 08/02/1996

BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)

CITATION:
1996 SCC (2) 567 JT 1996 (5) 664
1996 SCALE (2)382
ACT:

HEADNOTE:

JUDGMENT:
O R D E R
In this appeal, the only question is whether the
appellant is a legitimate child of her father, Ram Singh.
Though all the courts concurrently have found that she is
the daughter of Ram Singh and her mother Gurnam Kaur, the
finding recorded is that she is illegitimate child since the
marriage of Gurnam Kaur with her previous husband was not
legally dissolved. Section 16 of the Hindu Marriage Act,
1955, as amended by Amendment Act 68 of 1976 reads as under:
“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 such child is
born before or. after the
commencement of the marriage Laws
(Amendment) Act, 1976 (68 of 1976),
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 valid otherwise than on a
petition under the Act.”
Preceding the amendment, declaration of nullity by a
decree of a Court is a pre-condition. Amendment 68 of 1976
has done away with it and declared that notwithstanding the
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 such child is
born before or after the commencement of the Amendment 68 of
1976 and whether or not a decree of nullity is granted in
respect of that marriage under the Act and whether or not
the marriage is held to be void otherwise then on a petition
under the Act. Thus it would be clear that declaration of
validity of a marriage on a petition of either party or, in
other words, declaration of the marriage as nullity under a
decree which were preconditions under Section 12 of the Act
is done away with. Consequentially, as if the marriage had
been valid, the child shall be legitimate whether such child
was born before or after the commencement of Act 68 of 1976.
By operation of Section 8 of the Hindu Succession Act 1956
read with Schedule I, appellant being the daughter of Ram
Singh, is entitled to the property of her father. The decree
is accordingly granted. Application for appointing a
guardian of the minor is allowed.

  • The appeal is accordingly allowed.

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