Illegitimacy under Hindu Law
Under the Hindu Law, if a marriage satisfy all the conditions laid down in Section 5 and Section 7 of the Hindu Marriage Act, 1955 it is considered to be a valid marriage.Children born of such a valid marriage are alone considered legitimate. If the conditions lay down under Section 5 of the Act, are not satisfied, the resultant marriage may be void or voidable marriage as per Sections 11 and 12 of the Act.
Section 11 of the Hindu Marriage Act, 1955 defines a void marriage. It says, if the marriage is in contravention of any of the conditions specified in clauses (i), (iv) and (v) of Section 52 it shall be null and void. The children born of such a marriage are considered to be illegitimate children.
Section 12 of the Hindu Marriage Act, 1955 lays down the grounds of voidable marriages. If the marriage is annulled under any one of the ground under Section 12, then the children born of such a marriage will be considered as illegitimate children.
Apart from the above, if proper ceremonies are not performed at the time of marriage as per Section 7 of the Hindu Marriage Act, the resultant marriage is not a valid marriage.
Children born of such marriage will also fall under the category of illegitimate children.
The children who will fall under the category of the illegitimate children under Hindu Law may be summed up as follows:
Children born out of void marriages
Children born of annulled/voidable marriage
Children born of illicit relationship
Children born through concubinage
Children born of a marriage which is not valid for want of proper ceremonies.
In essence,under Hindu law, the rule of legitimacy is dependent upon the marriage. The social status of children is determined by the act of their parents. If they have entered into a valid marriage, the children are legitimate; but if the parents committed a folly and entered recklessly into an invalid marriage or a child is conceived even without entering into a relationship of marriage the resultant innocent child are labelled as illegitimate.The innocent child without having any hold or control over the act of its parents has to suffer the consequence of it.
Rights of an Illegitimate Child in the Past
The Hindu law relating to illegitimate children can be discussed under the following four heads:
Joint Family Property and Partition
Prior to the coming into force of the Hindu Adoptions and Maintenance Act, 1956, an illegitimate son of a Hindu was entitled to maintenance out of his father’s coparcenary property and his self¬ acquired property. The father was bound to maintain his illegitimate son during the period of his minority, irrespective of the fact whether he had any property or not.
Among the Sudras, illegitimate sons were entitled to maintenance if they could not inherit or get a share on partition. If, however, the mother was not a Hindu, this right could not be enforced under the Hindu law. The illegitimate son could, in that case, proceed against the putative father under the Code of Criminal Procedure.
Illegitimate daughters had formerly no remedy under Hindu law. They were, however, entitled to maintenance under the Code of Criminal Procedure, which right was enforceable only during the life¬time of the putative father and terminated on his death.
An illegitimate child is not entitled to succeed to his father. But under the Hindu Succession Act, illegitimate children are deemed to be related by illegitimate kinship to their mother and to one another, and their legitimate descendants are deemed to be related by legitimate kinship to them and one another, and can therefore inherit from each other under the said Act. An illegitimate child can inherit the property of his or her mother or of his or her illegitimate brother or sister. A mother can also inherit the property of her illegitimate child. The father has no right to inherit the property of his illegitimate child.
Joint Family Properties and Partition
Unlike a legitimate son, an illegitimate son does not acquire any interest in the ancestral property in the hands of his father; nor does he form a coparcenary with him, so that during the life-time of his father, the right of the illegitimate son is only limited to maintenance.But the father may, in his lifetime, give him a share of his property, which may be a share equal to that of the legitimate sons.
A mother had a preferential right of guardianship. The mother is considered the natural guardian of an illegitimate child. The father had no right to the custody of the illegitimate son during the letter’s minority, and ordinarily, the mother of an illegitimate child had the right to the custody of the child during the years of nurture.
Rights of an Illegitimate Child in the Present Scenario
The Hindu law relating to illegitimate children and the changes that are done in the following years are also discussed under the four heads
Joint Family Property and Partition
Under the Hindu Adoptions and Maintenance Act, 1956, a Hindu is bound, during his or her life-time, to maintain his or her illegitimate children. The obligation to maintain illegitimate children is now upon both, the father as well as the mother. Not only the illegitimate son, but also an illegitimate daughter, is entitled to be maintained by her father and mother.
The right to be maintained, however,extends only upto the period of minority. An illegitimate child is not entitled to be maintained by his or her parents after attaining majority.
Such a child will also not be entitled to be maintained if he or she has ceased to be a Hindu by conversion to another religion.
Moreover, under the Hindu Adoptions and Maintenance Act, an illegitimate son of a deceased Hindu, so long as he is a minor, and an illegitimate daughter of a deceased Hindu, so long as she remains unmarried, are entitled to be maintained by the heirs of the deceased out of the estate inherited by them or by the persons who take the estate of the deceased.
Such a son or daughter, however, will not be entitled to maintenance under the said Act if he or she has ceased to be a Hindu by conversion to another religion.
An illegitimate child who has ceased to be a Hindu can, however, apply for maintenance from his or her father under the Code of Criminal Procedure.
After the passing of the Hindu Succession Act, 1956, an illegitimate child of a Sudra cannot inherit the property of his or her father. Formerly, an illegitimate son of a Sudra if he was a dasiputra,was entitled to succeed to his father. Now, under the Act, he cannot.
Joint Family Property and Partition
Prior to the passing of the Hindu Succession Act, on the death of his father, an illegitimate son succeeded to his estate as a coparcener with the legitimate son of his father, and was entitled to enforce a partition against the legitimate son. Now, under the said Act, however, he cannot succeed his father, as he is not related to him by legitimate kinship.
The mother is considered the natural guardian. Now, if both the parents of an illegitimate child are Hindus, Buddhists, Jains or Sikhs by religion, or if one of the parents of such child is a Hindu, Buddhist, Jain or Sikh by religion, and such child is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged, then the Hindu Minority and Guardianship Act, 1956, applies to such a child, and under section 6 of the Act, in the case of an illegitimate boy or illegitimate unmarried girl, the mother is the natural guardian, and after her, the father is the natural guardian, and in the case of a married girl, the husband is the natural guardian.
But under that Act, such a guardian is not entitled to act as such, if he or she had ceased to be Hindu or has completely and finally renounced the world by becoming a hermit or an ascetic.
Judiciary on Illegitimacy
The Court has given some landmark judgments in the field of illegitimacy.
Some of such decisions are:
The Supreme Court of India in Revanasiddappa v. Mallikarjun opined that the constitutional values enshrined in the Preamble of our Constitution which focuses on the concept of equality of status and opportunity and also on individual dignity. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents.
A child born from such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage.
In Jinia Keotin v. Kumar Sitaram Manjhi,the Supreme Court has said:
Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If the marriage itself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardising the children born of the parties to such marriage.
In Kamulammal (deceased) represented by Kattari Nagaya Kamarajendra Ramasami Pandiya Naicker v. T.B.K. Visvanathaswami Naicker (deceased) & Ors the Privy Council held when a Sudra had died leaving behind an illegitimate son, a daughter, his wife and certain collateral agnates, both the illegitimate son and his wife would be entitled to an equal share in his property. The illegitimate son would be entitled to one-half of what he would be entitled had he been a legitimate issue. An illegitimate child of a Sudra born from a slave or a permanently kept concubine is entitled to share in his father’s property, along with the legitimate children.
Illegitimate Children Under Muslim Law
In Hindu law, the illegitimate child belongs to the mother. But under Muslim law, the child does not even belong to the mother and is considered as the child of nobody.
Parentage is exclusively established with the real father and mother of a child, and only if they beget the child in a lawful matrimony. Muslim Law is devoted to the notion that an illegitimate child is a child of nobody. In Hanafi Law, parentage is established in the every case by the mother but in Shiite Law, parentage is established only if the child is begotten in lawful wedlock, which means that an illegitimate child will not belong to either of the parents. They (Sunnis or the Hanafis) adopt a view that an illegitimate child, for some purposes, such as for feeding and nourishment, belongs to the mother. For these purposes, the Hanafi Law confers some rights on the mother.
In Muslim law, a son is legitimate only if the offspring is begot by a man and his wife or a man and his respective slave; any other offspring is known as ‘Zina,’ which means a clandestine connection, and hence is not legitimate. The term ‘wife’ essentially means marriage but marriage may be entered into without any ceremony; the presence of marriage therefore in any particular case may be an open question.
Direct proof is needed to prove a marriage valid, but if there be no such proof, indirect proof shall suffice. Now, one of the ways for indirect proof is by the acknowledgment of legitimacy in favor of a son. This acknowledgment must not be merely of sonship, but must be made in such a manner that it shows that the acknowledger’s intention is to accept the child as his legitimate son.
Privy Council in Sadiq Hussain v. Hashim Ali said that ‘No statement made by one man that another (proved to be illegitimate) as his son can make the other legitimate, but where no proof of that kind has been given, such a statement or acknowledgement is substantive evidence that the person so acknowledged is the legitimate son of the person who makes the statement, provided his legitimacy is possible.
’Again in Habibur Rehman Chowdhury v. Altaf Ali Chowdhury, ‘the Court has said that there is no process recognized under Muslim law by which a status of legitimacy may be conferred on an illegitimate child. But, it seems that one of the reasons for permitting polygamy and temporary forms of marriages under Muslim law is that under no circumstances the child born to them shall be illegitimate.
Right to property of illegitimate child
In Muslim law, the illegitimate child has no right to inherit property from the father in the classical law, as well as in some of the modern Islamic jurisdictions.
The mother of an illegitimate child may find herself subject to harsh punishments for having Zina. Thus, the crucial status of legitimacy in Islamic law has a huge impact on the lives of children and their parents, especially mothers. Thus, it is difficult for an illegitimate child to claim property from his or her parent/s.
In no school of Muslim law, an illegitimate child has any right of inheritance in the ownership of his putative father. Under the Hanafi law, the mother and her illegitimate children have mutual rights to inherit property. The illegitimate child inherits not only the property of his/her mother but also the property of all other relations with whom he/she is related through their mother.
Thus, when a Hanafi female dies to leave behind her husband and an illegitimate son of her sister, the husband will take one-half of the total property and the remaining will go to the sister’s son. Since the illegitimate child cannot inherit from the father, he/she cannot inherit from any other relations through the putative father.
A reciprocal right of inheritance exists between an illegitimate child and the maternal relations. They are also his residuary heirs. Of course, his other inheritors are his/her spouses and his descendants, with an exception of his father and his relations. Thus if an illegitimate person leaves a mother, a daughter, and father, the daughter would get ½ and the mother 1/6th; the remainder would revert to them. The father would be excluded. Similarly, an illegitimate brother and illegitimate uncle are not entitled to inherit. But a twin brother will inherit as his uterine brother (the twin brother is regarded as the son of only the mother and not that of the father, hence the term- uterine brother.Under the Shia law, the illegitimate child does not inherit even from the mother. In Shia law, illegitimacy acts as the factor for complete exclusion, and the illegitimate child is not allowed to inherit from either of the parents.
Right to Maintenance of an Illegitimate Child
Tyabgi says ‘Mohammadan law appears to impose no burden upon the natural father of the child’. Muslim laws, it seems, does not confer any kind obligation of maintenance of illegitimate children on either parent, though the Hanafis recognize the obligation of nurture a child till the age of seven; the Shias do not even recognize this obligation.
Under Muslim law, the father is not bound to maintain his illegitimate child, but Section 125 of the Criminal Procedure Code, 1973, (which ensures that all such unfortunate children are maintained by their fathers except a married daughter) however binds the father to pay for the maintenance of the child. The father would be held liable to pay a certain amount even if the mother refuses to give up the illegitimate child to him.
Guardianship Under Muslim Law
In the schools of both the Sunnis and the Shias, the father is recognized as guardian and the mother in all Muslim schools of law is not recognized as a guardian, natural or otherwise, even after the demise of the father. The father’s right of guardianship exists even when the mother, or any other female, is entitled to the custody of the minor. The father has the absolute right to control the education and religion of minor children. So long as the father is alive, he is the exclusive and supreme guardian of his minor children.
In Muslim Law, an illegitimate child is considered as ‘a child of nobody. ‘The Father’s right of guardianship extends only to his minor legitimate children. He is not entitled to the guardianship or the custody of his illegitimate minor children. The mother is also not a natural guardian, even of her illegitimate minor children but she is entitled to their custody
The Christian law of inheritance in India is regulated by the Indian Succession Act, 1925. The Indian Succession Act (ISA) only recognizes kinship, therefore adopted and illegitimate children are excluded from the ambit of the act. Christian law provides for equal inheritance rights to sons and daughters only if they are born from a valid marriage. ’Child’ under ISA does not include illegitimate child.
Indian Christian marriage act defines void marriages as following
1. Section 4 says if either the bride or bridegroom is Christian and the marriage is not solemnized and registered according the provisions of this Act, the marriage is void.
2. As per Section 26 and 52 if the marriage is not solemnized within two months after the notice is given, the marriage is void.Section 60 says that if the persons intending to be married has a wife or husband still living than marriage is void
Since Indian Divorce Act is applicable to divorce under Christian law, Section 18 and 19 provides in what situations marriage solemnized under Christian religion may be declared null and void the respondent was impotent at the time of marriage and at the time of institution of the suit
The parties are within prohibited degree of consanguinity or affinity
Either party was lunatic or idiot at the time of marriage
The former husband or wife of either party was living at the time of marriage and the earlier marriage was subsisting
Under section 21 of the Indian Divorce Act, 1869 only annulment of the marriage in two situations can confer the status of legitimacy to children born of the marriage, viz.,
a second marriage during the subsistence of the first marriage in good faith that the former spouse was not alive, and insanity.
Thus illegitimate children born out of all kinds of void marriage are not debarred from inheriting the estate of their parents and child is disqualified only if born out of prohibited degree or when the other party is importent.
In Christian law, we see discrimination exists between children born out of different grounds of void marriages.
The personal law of Christian does not also confer any obligation on the parents to maintain their illegitimate child though such child can claim maintenance under the secular law provisions of Code of Criminal Procedure, 1973. A minor child whether legitimate or illegitimate has no right to claim separate maintenance as per the decision of the court in Chacko v.Daniel.On issues relating to succession only the lawfully wedded wife and legitimate children have the claim.
In accordance to the changing needs and nature of the society, the Supreme Court ruled that an unwed mother can be appointed as the sole legal guardian of her child without the consent of the father. India is changing, and many single parent families are emerging. The Court refused to involve father in the petition who was even unaware of the existence of the child.
The legal recognition by father is irrelevant in situation when the mother is the sole care giver of the child. Welfare of child has paramount importance and taking into account the law in countries like UK, USA, New Zealand, Philippines and South Africa, ruled that unwed mother has primary custodial and guardianship rights over the child.
The main issue that arose in this case was with respect to procedural requirement as per the Guardians and Wards Act, according to which the notice is required to be sent to father to obtain his consent, as petitioner has applied for guardianship. The bench gave a liberal interpretation to Section 11 of the Guardians and Wards Act, ruling that in the case of illegitimate children whose sole caregiver is one of his or her parents, the term “parent” would mean principally mean that parent alone.
The bench also decided not to be swayed by the tenets of Christian law, and said: “India is a secular nation and it is a cardinal necessity that religion be distanced from law. Therefore, the task before us is to interpret the law of the land, not in light of the tenets of the parties’ religion but in keeping with legislative intent and prevailing case law.
”It further noted that unwed Christian mothers in India are disadvantaged when compared to their Hindu counterparts who are the natural guardians of their illegitimate children by virtue of their maternity alone. “It would be apposite for us to underscore that our Directive Principles envision the existence of a uniform civil code, but this remains an unaddressed constitutional expectation,” the bench stated.
Indian Succession Act, 1925
The ISA is based on Statue of Distribution which used to govern the succession of the personal property in England. The Act provided no discrimination in inheritance on the basis of sex. Rights of both half blood and full blood were recognized.
In Smith v. Massey, it was held that where there were two sisters born of unmarried parents the son of one of them was not the nephew of the other. It was also said for the applicability of Indian Succession Act:
No doubt the Act is applicable to others than persons, of exclusively English descent, but these sections are not extended to Hindus, and for my own part I cannot conceive that such an Act as this, which defines certain relations simpliciter, intended any other relations than those flowing from lawful wedlock. If the argument were conceded, a bastard would share equally with a son-i.e. a legitimate son, he being the only son known to our law-and this result appears to me wholly repugnant and impossible.
There is no difference between agnates and cognates.
The Act expressly discriminates illegitimate children in matters of testamentary succession when it says that if the intention of the testator to give the property to the illegitimate children is not clearly mentioned in the will, then the term child will refer only to legitimate child.