Where a marriage is annulled on the ground that a former husband or wife was living, and it is adjudged that the subsequent marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was dead, or when a marriage is annulled on the ground of insanity, children begotten before the decree is made shall be specified in the decree, and shall be entitled to succeed, in the same manner as legitimate children, to the estate of the parent who at the time of the marriage was competent to contract.
Simplified Explanation
Section 21 of the Indian Divorce Act, 1869 addresses the legal status of children born from a marriage that has been annulled. The provision specifically concerns situations where a marriage is annulled on certain grounds, such as bigamy or insanity, and ensures that children born before the annulment are treated as legitimate.
Key Provisions of Section 21
- Annulment on the Ground of Bigamy:
- If a marriage is annulled because one of the parties was already married to someone else (bigamy), but the subsequent marriage was contracted in good faith, with both parties believing that the previous spouse was dead, the children born during the marriage will be considered legitimate.
- Annulment on the Ground of Insanity:
- Similarly, if a marriage is annulled due to one of the parties being insane at the time of marriage, children born before the annulment will be regarded as legitimate.
- Legitimacy of Children:
- The children born during the annulled marriage are entitled to succeed to the estate of the parent who was competent to contract the marriage (i.e., the parent who was not affected by the reasons for annulment, such as insanity or bigamy).
- These children will have the same inheritance rights as children born in a valid marriage.
Explanation of the Provisions
- Good Faith Belief of Death:
- This provision addresses situations where a person, believing their spouse to be dead (due to ignorance or mistake), marries again. If the second marriage is annulled because the spouse was not actually dead, the children from that marriage are still treated as legitimate because the marriage was entered into in good faith.
- Mental Incapacity (Insanity):
- In cases where a marriage is annulled due to one party’s insanity, children born before the annulment will also be considered legitimate. This ensures that children are not punished for the mental incapacity of one of the parents at the time of marriage.
- Rights of Children:
- The provision also ensures that children born during an annulled marriage are not deprived of inheritance rights. They are entitled to inherit from the parent who was capable of entering into the marriage, despite the annulment of the marriage itself.
Practical Implications
- Inheritance: If a marriage is annulled but the children were born before the decree, they will have the same inheritance rights as legitimate children, which includes the right to inherit from the competent parent.
- Good Faith Marriages: For people who marry under the misconception that their spouse is deceased, the law protects the legitimacy of the children born from such marriages, even if the marriage is later annulled.
- Ensuring Fairness: This provision ensures that children are not unfairly penalized due to the invalidity of their parents’ marriage. They maintain their legal status and inheritance rights.
Example of Application
- Bigamy: Suppose a man remarries after believing his first wife is dead. The second marriage is annulled when it is discovered that the first wife is still alive. The children born from the second marriage will still be considered legitimate and will have the right to inherit from the father (assuming he was the competent party).
- Mental Incapacity: If a woman marries while mentally incapable (insane), and the marriage is annulled, the children born before the annulment are treated as legitimate. They will inherit from the mother, assuming she was the competent parent at the time.
Conclusion
Section 21 of the Indian Divorce Act, 1869 ensures that children born from marriages that are later annulled (due to bigamy or insanity) are not denied legitimacy or inheritance rights. They are treated as legitimate children, with full rights to inherit from the competent parent. This provision protects the interests of children, ensuring fairness even when the marriage itself is declared void.
