Section 21 of the Divorce Act 1869 - Children of Annulled Marriage

Section 21 of the Divorce Act, 1869 deals with the status, identification in the decree and succession rights of children born or conceived before a decree annulling a marriage in the specific circumstances stated in the section.

Text of Section 21 - Children of annulled marriage

Meaning and scope of Section 21

The provision applies when a marriage is annulled in either of the situations expressly described in Section 21. First, the earlier husband or wife of a party was living, but the subsequent marriage was entered into in good faith and with the full belief of the parties that the former spouse was dead. Second, the marriage is annulled on the ground of insanity.

For these cases, the section protects children begotten before the decree of nullity is made. The decree is required to specify those children. The provision then gives them a defined succession right: they may 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 the marriage.

Key requirements under Section 21

• There must be a decree annulling the marriage on a ground covered by Section 21.
• Where the ground is that a former spouse was living, the statutory protection depends on the finding described in the section concerning good faith and belief that the former spouse was dead.
• The protected children are those begotten before the decree of nullity is made.
• Such children are to be specified in the decree.
• The succession right stated by Section 21 concerns the estate of the parent who was competent to contract the marriage at the relevant time.

Relationship with nullity provisions

Section 21 appears in Part IV of the Divorce Act, 1869 dealing with nullity of marriage. It should therefore be read with the applicable provisions governing petitions for nullity and grounds for a decree of nullity, particularly Section 18 and Section 19.

Succession effect of the provision

Section 21 does not state an unrestricted rule about succession to every person's property. Its language specifically connects the protected child's succession right with the estate of the parent who was competent to contract at the time of the marriage. The statutory wording should therefore be applied to the facts of the particular decree and succession claim.

Official text of the Divorce Act 1869

The current central Act can be checked on the Government of India's India Code portal. For authoritative use, verify the latest text, amendments and applicable judicial decisions.