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Are Children From Second Marriage Entitled To Share In Ancestral Property?: Supreme Court Issues Notice in a SLP .

Are Children From Second Marriage Entitled To Share In Ancestral Property?: Supreme Court Issues Notice in a SLP .

By- Himani Baid

In the matter of Suman Bai v. Gangabai Tryambakrao  Katre,the Supreme Court issued a notice in a SLP raising the question of “Whether children from a second marriage will have a stake in ancestral property?”

Under Section 16 of the Hindu Marriage Act, 1955, any child of marriage which is regarded as null and void under section 11, who would have been legitimate if the marriage had been valid, shall be legitimate. 

However,under Section 16(3) it shall not 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.

In the case at hand, the petitioner had challenged the High Court order in front of the Supreme Court  which ruled that the children were born out of “the second marriage,” they should not inherit a share of their grandmother’s property.”

The bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy while issuing the notice also stated that a major concern is whether the said children from a second marriage will have a portion in the ancestral property.

In March 2020, the bench comprising Justices Sanjay Kishan Kaul and KM Joseph while considering a SLP with a similar issue called upon the Registrar to look into this issue so that the papers can be placed before the Hon’ble Chief Justice of India for reference to a larger Bench.

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