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Legal validity of consensual relationship with brother

Shivendra Pratap Singh

Advocate (Lucknow)

Online advising since Oct. 2014

Family Law

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Question: It is a complicated situation for me, I am a 40 year old lady. My husband was an abuser and we have legally divorced 6 years ago without any issues left. I left my hometown, came to Delhi to join a job and started staying with my brother who is never married and a confirmed bachelor. The situation evolved into a consensual relationship.

It is full of love and trust and now I am expecting a child at this age with my brother. Nobody has any knowledge about our relationship and assumes us as husband and wife. Given that no societal issues will arise, what is the legal status of our relationship? Can we safely put our names as parents in our child’s birth certificate? Also can we get our relationship registered as a marriage? 

Asked from: Delhi

Section 5 of the Hindu Marriage Act prohibits marriage between the prohibited relationship. Marriage with a real brother comes under the prohibited relationship therefore, such a marriage is null and void under Section 11 of the Hindu Marriage Act.

If he is not your real brother but comes under the “Sapind” then again such a marriage is null and void. In both conditions the court shall decree the marriage null and void upon the suit filed by any party to such a marriage.  

If a child is born out of such a wedlock, that child would have been legitimate if the marriage had been valid. A child if born in a marriage which is null and void under section 11, is legitimate under section 16 of the Hindu Marriage Act.

Marriage is a social bonding and birth is a natural phenomenon. How and when to take birth is not in the hands of a person and therefore, such a child cannot be deprived of proprietary benefits which he should have secured, if he would have been born within the valid wedlock of his father and mother.

Indubai Jaydeo Pawar and another v. Draupada alias Draupadi Jaydeo Pawar and other [2017 (4) ABR 525]

In Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and others v. K. Devi and others 1996 AIR SCW 2337 the Hon’ble Supreme Court has held that a child born out of void marriage is legitimate for all practical purposes. The Supreme Court opined that:

In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.

That child will have proprietary rights as same as the child born out of a valid marriage. You can put your name to your child as his parents and get his birth certificate. But you cannot register your marriage because your marriage is void.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

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