The term illegitimacy is derived from a Latin maxim which means “not in accordance with the law”. An illegitimate child is one who is born out of lawful wedlock. The law discriminated against them in various ways, they never had the same privileges under the law as a legitimate child but the rights of illegitimate children have evolved significantly over time. In this article, we will be discussing the rights of illegitimate children and legitimate children under Hindu law.
Introduction
The legitimacy of a child depends on the validity of a marriage under the Hindu Marriage Act, 1955. The act applies to Hindus, Sikhs, Jains, or Buddhists. The conditions of marriage are laid down under Sections 5 and 7. If these conditions are contented then it is considered as a valid marriage under the Hindu Marriage Act, 1955. The child born out of such a marriage is also considered legitimate. However, the marriage can be declared as void or voidable under Sections 11 and 12 of the Hindu Marriage Acts, 1955, if the conditions given as per Section 5 of the act are not fulfilled.
Section 11 of the Hindu Marriage Act, 1955, deals with void marriages, which says that if the marriage does not fulfill the conditions laid down in clauses (i), (iv), and (v) of Section 5 of the Act, then, the marriage will be considered as null and void. The child who is born out of this marriage will be considered an illegitimate child. Section 12 of the Hindu Marriage Act, 1955, deals with voidable marriages, which says that if a marriage is annulled under any ground of Section 12 of the Act, then, the child born out of this marriage will be considered as an illegitimate child. Also, if at the time of the marriage if proper marriage ceremonies are not performed then such a marriage will not be valid and the child born will also be considered illegitimate.
Therefore, the children who fall into the category of illegitimate children under Hindu Law are as follows:
- Children born from void marriages,
- Annulled/voidable marriages resulting in children,
- Illicit relationship from which children are born,
- Children born from a relationship with concubines, and
- Children born of invalid marriages for want of proper ceremonies.
Rights of an Illegitimate Child
The Hindu law relating to illegitimate children are discussed under four heads:
Maintenance
Before the enactment of Hindu personal laws, the Mitakshara and Dayabhaga schools governed every aspect of Hindu personal issues. They recognized maintenance rights of the illegitimate son of a Hindu 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. However, illegitimate daughters were not entitled to maintenance unless they proceeded a claim under the Code of Criminal Procedure, during the lifetime of the father.
Under the Hindu Adoptions and Maintenance Act, 1956, a Hindu is bound 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 up to 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.
Inheritance
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 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 Hindu Succession Act. In the case of Revanasiddappa v. Mallikarjun, the Supreme Court held that illegitimate children have a right to not only the self-acquired property of their parents but also their ancestral property. An illegitimate child can inherit the property of his or her mother or his or her illegitimate brother or sister (uterine blood). A mother also can inherit the property of her illegitimate child. The father has no right to inherit the property of his illegitimate child.
Guardianship
The Hindu Minority and Guardianship Act, 1946 states that the natural guardians of an illegitimate minor boy or an illegitimate minor girl are the mother and after her, it is the father. In the case of ABC v. State of Delhi (NCT), 2015, the Supreme Court held an unwed single mother in India can be the sole guardian of the child.
Joint Family Property and Partition
Before 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. But now an illegitimate son does not acquire any interest in the ancestral property in the hands of his father; nor does he can be a coparcenary is a Joint Hindu Family. He is also not entitled to enforce partition against the family. 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.
Landmark Judgements
Revanasiddappa v. Mallikarjun, 2011
In this case, the Supreme Court held that the child born out of such a relationship is innocent and is entitled to all the rights and privileges available to children born out of wedlock. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such a relationship has to be viewed independently of the relationship of the parents.
Jinia Keotin & Ors vs Kumar Sitaram Manjhi & Ors, 2002
In this case, the Supreme Court held that 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 be considered illegitimate.
Muthammal And Ors. vs Maruthathal, 1981
In this case, the Madras High Court observed, “the wordings of Section 16 of the Hindu Marriage Act, in so far as it is relevant to a marriage void under Section 11, leads to an anomalous and startling position which could not have been contemplated by the legislature. The position and status of a child of void marriage should be the same whether the marriage is declared a nullity under Section 11 or otherwise.
Shantaram Tukaran Patil And Anr. vs Dagubai Tukaram Patil And Ors., 1987
In this case, the Bombay High Court observed that the children of void marriages would be deemed legitimate, irrespective of the decree of nullity although they would not acquire the right to succession to the same extent as is available to the children of a valid marriage.
Smt. Sarojamma And Ors. vs Smt. Neelamma And Ors., 2005
In this case, the court held that a child born of void or voidable marriage can only claim a share in self-acquired properties of parents not in ancestral property.
Conclusion
Illegitimate children suffer the consequences of the decisions of their parents and rights conferred upon them are limited. The maintenance rights conferred upon an illegitimate child to claim maintenance are uniform across all communities under Section 125 of CrPC. In the Hindu personal laws, Section 16 of the HMA and the Supreme Courts have attempted to remove discriminatory inheritance rights of illegitimate children, to a certain extent however the biggest limitation is that it only addresses the rights and legitimacy of those children who are born from a void or voidable wedlock. However, if a child is born to parents who have no matrimonial relationship between them, that child will be deemed to be an illegitimate child and does not have any inheritance rights, in the self-acquired or ancestral property of their fathers, and can only claim rights in their mother’s property. While the legislature and the judiciary have attempted to bridge the gap between the rights of illegitimate and illegitimate children, they have restricted themselves solely to address only those rights of children born from a void or voidable wedlock and have not addressed the cause of children born to parents who have no marital relations.
Frequently Asked Questions (FAQs)
Do illegitimate children have the same rights as legitimate children?
The general rule is that an illegitimate child is entitled to one-half (1/2) of the share of a legitimate child. Thus, the law does not treat legitimate and illegitimate children similarly insofar as inheritance is concerned. In terms of inheritance, the illegitimate child is entitled only to one-half of the inheritance of a legitimate child.
Can an illegitimate child inherit his father’s property?
The inheritance rights of illegitimate children are governed by Section 16 (3) of the Hindu Marriage Act, 1955, which states that ‘such children are only entitled to the property of their parents and not of any other relation’.
Can an illegitimate child claim maintenance?
Under Section 125 of the CrPC, an illegitimate minor child is entitled to maintenance. Even if the fact of marriage is discarded, the minor child is found to be an illegitimate daughter of the respondent would be entitled to maintenance.
Can illegitimate children claim partition?
The illegitimate son cannot enforce partition during the father’s lifetime. If there is a partition during the father’s lifetime then he ‘may’ be allotted a share. But if there is a partition after the father’s death then the legitimate sons should give him a share of the property.
What was held in the case Revanasiddappa v. Mallikarjun?
In this case, the Supreme Court held that the child born out of such a relationship is innocent and is entitled to all the rights and privileges available to children born out of wedlock.
Does illegitimate child benefit from Will?
The law states that an illegitimate child shall receive a share equivalent to half of the share that will be received by a legitimate child who in turn shall receive a share of half of the value of the whole legitime.