By S&S Co. Advocates & Solicitors · Published 21 October 2026 · Informational content, not legal advice: see our disclaimer
A second marriage turns out to be void because the first one was never dissolved. A marriage is annulled years later for some defect that made it voidable from the start. Either way, there are children, and the question that eventually lands in front of a lawyer is not whether the marriage was valid, that question is usually already settled, but what happens to the children born of it. Are they legitimate. Can they inherit from their father. Can they inherit ancestral property, or only what their father personally owned and acquired himself.
Section 16 of the Hindu Marriage Act, 1955 answers the legitimacy question cleanly and has done so for decades. The inheritance question took far longer to settle, with the Supreme Court resolving a genuine conflict in its own earlier decisions only in September 2023, and a steady stream of High Court rulings since then applying that resolution to actual partition and succession disputes.
What Section 16 actually confers: legitimacy, not validity
Section 16 does not make a void marriage valid, and it does not retrospectively cure whatever made a voidable marriage annullable. What it does is sever the child's legal status from the marriage's own validity. A child born of a marriage that is null and void under Section 11, or a child born of a marriage annulled by a decree of nullity under Section 12, is treated by Section 16 as a legitimate child of the parents, regardless of the marriage's own invalidity, whether or not a decree of nullity was ever actually obtained.
This legitimacy is a statutory fiction created specifically to protect children from a consequence of their parents' marital status that they had no part in creating. Before this provision existed in its current form, a child of a void marriage risked being treated as having no legal parentage at all for inheritance purposes, a result Parliament intended Section 16 to prevent. Section 16(3) then goes on to limit what this legitimacy actually produces: it confers rights only in relation to the property of the parents, not any wider right to the property of other relatives the child is not otherwise connected to by a valid family relationship.
The conflict the Supreme Court had to resolve in 2023
For years, Indian courts worked from a restrictive reading, associated with a line of decisions including Jinia Keotin v. Kumar Sitaram Manjhi in 2003, holding that a child legitimated under Section 16 could inherit only the parent's self-acquired property, and had no claim at all to a share of ancestral, coparcenary property in a Hindu joint family, since such a child was never treated as having been born a coparcener. A two-judge bench in a 2011 decision, itself called Revanasiddappa v. Mallikarjun, expressed doubt about that narrow reading and referred the question to a larger bench, creating years of uncertainty about which line of authority actually governed a fresh dispute.
The larger bench resolved the conflict on 1 September 2023, in the same case name, Revanasiddappa v. Mallikarjun, this time decided by a three-judge bench. The Court held that a child legitimated under Section 16 is entitled to a share in the parent's property, and that this extends to the parent's own share in ancestral, joint family property, not merely to property the parent personally and separately acquired. What the Court did not do is make the child a coparcener in their own right: the child inherits a share of what the parent's own interest in the joint family property would have been, worked out on a notional partition, rather than acquiring the birthright status of a coparcener who can, for instance, demand partition purely by virtue of birth into the family the way a legitimate coparcener can.
How this plays out in an actual partition dispute
The Orissa High Court applied this directly in April 2025, in Smt. Sandhya Rani Sahoo Mohanty v. Smt. Anasuya Mohanty, a dispute over a deceased man's property between his first wife and children from a subsequent, void second marriage. The Division Bench held that the children of the void marriage were entitled to inherit their father's self-acquired property and, in addition, his share of the ancestral property, calculated as the share he would have received had a notional partition taken place immediately before his death. The court was equally clear that this did not disturb the first wife's own status as the lawful wife, or her own separate right to inherit, which continued undiminished alongside the second marriage's children's newly recognised share.
A similar result was reached by the Andhra Pradesh High Court in a dispute over a father's property brought by a son born of a void marriage, holding that the legitimacy conferred by Section 16(1) carried with it the right to succeed to the father's property. Taken together with the Orissa ruling, the pattern emerging from post-2023 High Court decisions is a fairly consistent application of the Supreme Court's position: children from a void or voidable marriage share in both categories of the parent's property, while the marriage's other legal consequences, including the status of a lawful spouse from a valid, subsisting marriage, are left untouched.
What is still genuinely unsettled
One significant question remains open even after the 2023 ruling: whether a child legitimated under Section 16 can demand partition of the ancestral property during the parent's own lifetime, the way a coparcener born into the family ordinarily could, or whether that right only crystallises on the parent's death, when the notional-partition exercise the courts have been applying actually becomes necessary. Commentary on this point describes conflicting High Court views, and at least one further reference to a larger Supreme Court bench has been reported as pending on how Section 16 and coparcenary rights actually interact, so a family with young children from a marriage of this kind should not assume the full extent of their inheritance rights is finally and completely settled.
Families dealing with this in practice are usually better served treating the 2023 ruling as having settled the core question, that these children do inherit a share including of ancestral property, while recognising that the mechanics of exactly when and how that share can be claimed, particularly before the parent's death, may still need to be argued through on the specific facts of the case, ideally with the benefit of whatever the pending reference eventually decides.
What this means for drafting and estate planning
A parent in this situation who wants certainty, rather than leaving the children of a void or voidable marriage to rely on Section 16 litigation after the parent's own death, is generally better served executing a clear will that expressly addresses what each set of children is to receive from the parent's self-acquired property, since a will removes most of the argument about intestate shares for that category of property even though it cannot itself resolve how ancestral, coparcenary property devolves. Addressing the children from a void marriage explicitly in estate planning documents, rather than leaving the matter to be fought out as a succession dispute after the parent's death, is consistently the better outcome for everyone involved, including the first family whose own position benefits from the same clarity.
A will of this kind should name the children of the void or voidable marriage specifically, rather than relying on a general reference to 'all my children' that later invites an argument about whether it was even meant to cover them. It should also be read alongside whatever family settlement, if any, already governs how the ancestral property is held between the branches of the family, since a will dealing only with self-acquired assets while leaving an informal, undocumented understanding to govern the ancestral share is a common source of exactly the kind of dispute this guide has described. Where a family settlement already exists, updating it to expressly record each branch's agreed position on the ancestral property, consistent with the 2023 ruling, closes off most of the room an aggrieved relative would otherwise have to reopen the question decades later.
Frequently Asked Questions
Does Section 16 make a void marriage legally valid?
No. Section 16 only confers legitimacy on the children of a void or voidable marriage. It does nothing to the marriage's own validity, which remains void or voidable exactly as it was before, and has no effect on the status of the parties to that marriage toward each other.
Can a child from a void marriage inherit ancestral, joint family property?
Yes, following the Supreme Court's 2023 ruling in Revanasiddappa v. Mallikarjun. The child is entitled to a share representing the parent's own interest in the ancestral property, calculated on a notional partition, though the child does not become a coparcener in their own right by birth.
Does recognising these children's inheritance rights affect the first wife's rights?
No. Courts applying the 2023 ruling, including the Orissa High Court in 2025, have been clear that a legitimate spouse's own status and inheritance rights from a valid, subsisting marriage continue undiminished alongside any share recognised for the children of a later void marriage.
Can these children demand a partition of ancestral property while the parent is still alive?
This remains genuinely unsettled. High Court decisions have gone different ways on whether the right to a share can be claimed before the parent's death or only crystallises afterward, and a further reference on how Section 16 interacts with coparcenary rights has been reported as pending before a larger Supreme Court bench.
References & Further Reading
The provisions and rulings below were relied on for this guide. The position can change with amendments and later decisions, so check the current text and the latest case law before acting on any of it.
- Hindu Marriage Act, 1955, Section 16 (legitimacy of children of void and voidable marriages) and Section 16(3) (limiting such legitimacy to rights in the property of the parents)
- Jinia Keotin v. Kumar Sitaram Manjhi, (2003) 1 SCC 730 (earlier restrictive reading limiting inheritance to self-acquired property)
- Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1 (two-judge bench doubting the restrictive reading and referring the question to a larger bench)
- Revanasiddappa v. Mallikarjun, 2023 INSC 783, decided 1 September 2023 (three-judge bench resolving the reference; children legitimated under Section 16 entitled to a share of both self-acquired and ancestral property, without becoming coparceners)
- Smt. Sandhya Rani Sahoo Mohanty v. Smt. Anasuya Mohanty, Orissa High Court, decided April 2025 (applying the 2023 ruling in a partition dispute between a first wife and children of a void second marriage)