The Supreme Court of India, in a ruling on September 1, 2023, said that children born out of an “invalid marriage” have the right to claim a share in their parents’ assets that are self-acquired or part of a joint ancestral property under the Hindu succession law.

The three-judge bench led by Chief Justice of India Dhananjaya Y. Chandrachud made the verdict in the hearing of a 2011 plea relating to the entitlement of children from “invalid marriage” in the ancestral property of parents. The court ruled in favour of children from invalid marriages to claim shares in parents’ property, both self-acquired and ancestral.  

However, the bench clarified that the entitlement is only limited to the parents’ share of property and not of any other family members.

Highlighting another situation, Ashok Shah, founding partner of N.A. Shah Associates, says: “The children (whether from valid, void or voidable marriage) cannot per se claim a right in parents’ property unless parents die without making a Will. In the event of parents’ death without making a Will, laws relating to intestate succession take effect.

“In such an event, the property is distributed in accordance with provisions of the Hindu Succession Act. Children, whether from void or voidable marriage, would be entitled to succeed to properties of the parent unless parents have made a Will.”

A Will is an estate planning instrument, a legal written document a person writes while he/she is alive to be used after the death of the Will-maker or Testator. The Will ensures financial security for the children, spouse, parents, other family members, or anyone else.

However, what if a Will is used against the entitlement of children born from an “invalid marriage” or if the parents exclude them from the property in the Will?

Here are a few things they need to know. First, such children can rightfully claim a share of the parent’s property, and if there is a Will, they may check the possibilities and challenge the Will.

Can Children From ‘Invalid Marriages’ Challenge A Will? 

Children from invalid marriages can challenge a Will. Shah states, “The ground for challenging a Will is laid down in the Hindu Succession Act. Whoever believes and can prove that the ground for challenging a Will exists can challenge the Will. This will be true for children from valid, void, or voidable marriages. Laws relating to challenge of Will is same for all.”

So, even if there is Will, one can challenge it, provided there is a compelling ground.

The apex court’s ruling greatly relieves children born out of invalid marriages. According to Shah, “The decision reiterates that so far as intestate succession is concerned, even if children are born out of void or voidable marriage, they are entitled to share in parents’ all assets. The parents’ assets would include a share of the parents in joint family property. The decision has the socially beneficial purpose of removing the stigma of illegitimacy faced by children of such marriages since the children are innocent. The distinction between self-acquired property of parents and share of parent in joint family properties will no longer exist.”