‘Illegitimate’ Children and the Law: A Primer on the Rights of Children Born Out of Wedlock in India – By Prachi Dutta
The term illegitimacy is derived from a Latin maxim which means “not in accordance with the law”. An ‘illegitimate’ child is therefore one who is born out of wedlock, his/her status determined by the marital relationship of his/her parents and is therefore consequentially considered to be nullius filius – having no legal relationship with his or her parents (1). Legitimacy is determined by two factors – the marital relationship of the parents and the legal status of this relationship.
The rights of ‘illegitimate’ children have evolved significantly over the centuries. In medieval Europe, Britain and America, an illegitimate child was given rights in terms of maintenance and almost no inheritance rights. However, from the 20th century, various jurisdictions (2) have amended their legislation to ensure that illegitimate children are treated at par with legitimate children and are not discriminated against for no fault of theirs. Prior to change in laws and social milieu that brought about changes in the rights awarded to illegitimate children in certain jurisdictions, these children faced immense discrimination in these jurisdictions and continue to face discrimination in most societies and religions, across the world. While there is no moral and ethical justification for the discriminatory laws that apply to illegitimate children, the ill-treatment and discrimination of illegitimate children has been attributed to condemning and/or discouraging “promiscuity” and illicit relations and to deter individuals from “engaging in illicit relations” at the expense of their progenies suffering discrimination (3).
Further, the effort to end discrimination against illegitimate children is also reflected in international law and various international conventions such as Article 25 of the Universal Declaration of Humans Rights categorically states that all children, whether born in or out of wedlock, shall enjoy the same social protection (4). Further, the United Nations Convention of the Rights of Child, 1989 states that all no child, irrespective of their or their parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status, shall face any kind of discrimination and that children are protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members (5). However, this applies only to state parties who have ratified the convention.
In February 2019, Indian newspapers reported that in Bombay, Maharashtra, a 27-year-old called Raphael Samuel wanted to file a case against his parents for giving birth to him without his consent (6). The case has not proceeded for various unknown reasons. Raphael Samuel’s reason for wanting to file a case is on the grounds that our consent can’t be sought before we are born and that since it was not our decision to be born, why should we be paid for the rest of our lives to live. While the argument is extremely fallacious, hollow and legally untenable, the corollary can be fairly applied while granting rights to all children irrespective of the marital status of their parents. Illegitimate children should not be forced to pay the price or bear the brunt of their parent’s actions and should be awarded the same rights and liberties as those born to parents who have a legitimate and legally recognized marital relationship. While the law in India with respect to the rights of illegitimate children is still in its nascent stages, through various case laws and statutory amendments, a paradigm shift, albeit at a glacial pace, is taking place in attempting to bring illegitimate children at par with legitimate children, in terms of their inheritance, maintenance and guardianship rights.
In India, the laws that govern familial relations and those between parents and children is mainly governed by personal laws and codes, notwithstanding the secular/neutral legislations. Amongst various religions and communities, the laws that are applicable to illegitimate children with respect to property, inheritance rights, maintenance, guardianship, adoption, etc. are vastly different. For example, illegitimate children who are born to Hindu parents or have been raised as Hindus are given far greater inheritance rights vis-à-vis their parents’ property as compared to illegitimate children who are born to Muslim parents or have been raised as Muslims since the personal laws that govern Muslims does not have provisions for illegitimate children. However, certain neutral and secular legislations such as Section 125, Code of Criminal Procedure, 1973 (“CrPC”), which pertain to maintenance rights of wives, children (legitimate and illegitimate) and parents exist which fills the lacunae of personal laws and provides a remedy in law with respect of maintenance to all illegitimate children irrespective of their or their parents religion and therefore in some instances, illegitimate children do not have to depend on their personal laws.
In India, prior to the drafting and passing of the Hindu Code Bills and the eventual enactment of Hindu Personal Laws, the people and communities were generally governed by their own customs, usage, etc. Therefore, inheritance was governed solely by custom and usage. Hindu women were not permitted to hold and purchase property apart from their “stridhan”, and if any immovable property devolves upon a Hindu woman, she only has life interest in the property and cannot alienate it according to her wishes. Further, illegitimate children were given no rights of inheritance or maintenance and were treated as outlaws. However, the enactment of the Hindu Code Bill streamlined and codified the laws governing Hindus and by extension, gave certain rights to illegitimate children. Further, through various amendment and precedents, the ambit of rights of illegitimate children have expanded.
Legitimacy and India
In India, legitimacy is recognized through various statutory provisions apart from the most obvious one, that being by birth. A child begotten during the continuation of a valid marriage or begotten 280 days after the marriage has been dissolved provided that the mother has remained unmarried is considered to be a legitimate child (7). In the event of a DNA test, this presumption is superseded (8). However, it is pertinent to note that this presumption applies only to a child who has been begotten from a valid marriage. In the event that the child is born out of a void or voidable marriage, there does not exist any presumption of legitimacy and the legitimacy of the child is dictated by the personal laws of the child or that of the parents.
The Hindu Marriage Act, 1955 was amended in the year 1976 and the amendment brought with it sweeping changes to the social milieu such as acknowledging the rights of illegitimate children, notwithstanding that it was only concerned with children begotten from a void or voidable marriage. In the pre-amended act, under Section 16, a child begotten from a void or voidable marriage was considered legitimate only if a degree of nullity was awarded for the marriage between the parents of the child. Further, such a child would be considered to be a legitimate child in a manner as if the marriage between the parents of the child was been dissolved instead of being annulled (9). Ergo, in the event that the parents of the child did not obtain a declare of nullity for their marriage, the child would be considered an illegitimate child and therefore would be precluded from various inheritance rights. Such a provision in a social welfare legislation like the Hindu Marriage Act, 1955 was problematic as children should not be “basterdised” whether a decree of nullity is passed or not and therefore the need to amend the section was crucial for courts to fill the lacunae in the statute (10).
Thereafter, the Parliament brought about an amendment by passing The Marriage Laws (Amendment) Act, 1976. After the 1976 amendment, a child born from a void or voidable marriage will be considered to be a legitimate child in the same manner as though he was begotten from a valid marriage even if a degree of nullity or annulment has not been obtained by the parents of the child. This was a crucial and important amendment as Section 16 is a benefit legislation and now innocent illegitimate children, whose social status is determined by the act or follies of their parents would not suffer from prejudice or whose familial rights would not suffer any infirmity (11). However, it is pertinent to note that this amendment is only pertinent to those children who are born from void or voidable marriages and does not address the concerns of illegitimate children born to individuals who do not have any marital relationship between them. The rights of these illegitimate children are addressed in other statutory provisions and precedents, which have been enumerated hereinbelow.
In Muslim law, illegitimate children are given no recognition, rights or status in terms of inheritance, maintenance, guardianship, etc., are treated as filius nullius and are referred to as “Zina” or clandestine connections. Further, Mohammadan law imposes no burden or obligation upon the natural/putative father of the child (12). However, amongst, Hanafis, an illegitimate child is recognised as a lawful child of the mother who is obligated to take care of the child (13) while the father of the illegitimate child is completely absolved of any. In the Shia, Sunni and Shite sects, an illegitimate child is given no status, recognition or rights in the property of the parents. Further, in Muslim law, no status of legitimacy can be conferred on illegitimate children through any process (14)
In the manner in which the legitimate or illegitimate status of children born from void and voidable marriages is addressed by the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, Muslim law also addresses the status of children born from the various types of marriages that exist. Muslim law recognise 3 types of marriages that are recognised; valid (sahih), irregular (fasid) and void (batil) (15). For example, a marriage contracted between a Muslim man and a Hindu woman (or an idolatress or fire worshipper) will be an irregular marriage (fasid) (16) but a marriage in which one party withholds the consent for marriage will be a void marriage (17). However, a marriage contracted between two Muslim individuals in which a proposal is made by or on behalf of one of the parties to the marriage and an expressed acceptance, at one meeting, of the proposal by the other party will be considered a valid (sahih) marriage. The status of children begotten from an irregular or fasid marriage is legitimate but children who are begotten from a void or batil marriage are considered to be illegitimate and do not have any inheritance or maintenance or guardianship rights or recognition under Muslim law (18).
In Christian Law, an illegitimate child is not given any status or recognition and therefore there are no codified religious/ legal provisions in India which confer rights of illegitimate children who are born to Christian parents. The Indian Divorce Act, 1869 (“IDA”)has provisions regarding rights of illegitimate children. In a manner akin to which children born from voidable or void marriage have been conferred with a status of legitimacy in Hindu Law and Muslim Law, children born from void and voidable marriages have also been conferred with a legitimacy in some cases in Christian Law under the IDA. Various grounds exist on which a decree of nullity can be sought to declare a marriage as null and void (19) . However, in terms of legitimacy of children born out of wedlock, only those children who are born from a wedlock which has been annulled on the grounds that a former spouse was actually living and the subsequent marriage was contracted in good faith and with the belief that the former spouse was actually dead and on the ground of insanity are considered to be legitimate children and are have a right to inherit their parents property (20). It is pertinent to mention that those children begotten from marriages that are annulled on other grounds stated in Section 19 of the Indian Divorce Act, 1869 are considered to be illegitimate children. Such a distinction between children begotten from various types of void marriages is novel to Christians living or domiciled in India.
The maintenance rights of illegitimate Hindu children are governed by the Hindu Adoptions and Maintenance Act, 1956. According to this Act, a “dependant” has been defined as being an illegitimate son who is a minor and an illegitimate daughter who is unmarried (21). Further, the Act stipulates that any Hindu, being a male or female, is duty bound to maintain their legitimate as well as illegitimate children (22) and such an illegitimate child can claim maintenance from their father or mother so long as the child is either a minor boy or an unmarried daughter. Therefore, a Hindu illegitimate child can seek maintenance under Hindu Laws itself and is not constrained to seek refuge in secular laws. It is pertinent to mention that Hindu personal law such as the Hindu Adoptions and Maintenance Act, 1956 is the only codified personal law that places an obligation on parents to maintain their illegitimate children and also gives illegitimate children the right to seek maintenance. Such provisions with regard to maintenance is not prevalent in codified personal laws of other religions.
In Muslim Law, no maintenance right is awarded to illegitimate children. Therefore, no burden or obligation is placed upon either parents to maintain and financially support illegitimate children. However, according to Hanafi Law, the mother has a responsibility to maintain and rear an illegitimate child. Despite the fact that an illegitimate child is not entitled to seek maintenance from the father under Muslim law, it does not preclude an illegitimate child to seek maintenance under Section 125 of the Code of Criminal Procedure from the father. In the case of Nafees Ara vs Asif Saadat Ali Khan (23), the Allahabad High Court, Lucknow Bench held that even though Mohammedan Law makes no specific provision for the grant of maintenance to an illegitimate child against his father, there is no prohibition either dictated by Mohammedan Law and since provisions of the Code of Criminal Procedure are part of the general law of the land which, in the absence of any contradictory provision in the Mohammedan Law, is binding on Mohammedans as other citizens of this country and therefore just because the Mohammedan Law makes no provision for maintenance, does not mean that a civil court has no jurisdiction to give a decree for maintenance.
In Christian Law, the IDA constitutes provisions regarding rights of illegitimate children. While Section 21 of the IDA lays down the rules for children born to parents who have obtained a decree of annulment, the IDA is silent on the rights of illegitimate children with regard to maintenance. Furthermore, codified Christian personal law in India does not have a provision for grant of maintenance rights to illegitimate children. Therefore, an illegitimate child who is born to Christian parents or has been raised as Christian, is constrained to seek a claim for maintenance from his/her parents under Section 125 of the Code of Criminal Procedure, 1973.
In the case where both parents of the illegitimate child belong to different religions, particularly when the father is a Muslim by religion and is not duty bound to maintain his illegitimate son by virtue of his religion, he is still duty bound to maintain his illegitimate child despite his religion and it being different from that of the mother of the illegitimate child. The Madras High Court held in the case of KM Adam v Gopalakrishnan (minor) (24), that even if one parent is a Muslim and is not bound by the provisions of Hindu Law, Section 2(2) of the Hindu Maintenance and Adoptions Act, 1955 does not suggest that a claim can only exists against a Hindu father or mother and that a Hindu minor child would be left without the right to maintenance against a Mohammeadan father and therefore a Muslim father is obligated to maintain his illegitimate child even if the child or the mother belong to a different religion and ask invoked law in that particular religion.
There is a sense of ambiguity in the realm of succession and inheritance rights of illegitimate children in India, compared to other rights available to them such as maintenance rights. One of the reasons this is because there does not exist a secular or neutral legislation that addresses the issue of inheritance rights or succession like is the case with the remedy of maintenance available under Section 125 CrPC and all matters of succession are under the purview of personal, religious laws.
The inheritance rights of illegitimate children has not been given any statutory recognition. The Indian Succession Act, 1926 (“ISA”) does not recognise illegitimate children and simply recognises the domicile of illegitimate children. Further, the Hindu Succession Act, 1956 (“HSA”) only recognizes legitimate kinship and in the case of illegitimate children, they are deemed to be related to their mothers only and can inherit the property of their mothers in accordance with the laws of succession that govern women under Section 14 of the HSA (25). Under Hindu personal law, the inheritance rights of illegitimate children is codified under Section 16(3) of the Hindu Marriage Act, 1955 which states that the children born out of void or voidable marriages are only entitled to property belonging to their parents and not anyone else’s had they not been the legitimate children of their parents. This section has been historically interpreted in such a manner so as to state that illegitimate children have a right of inheritance over the self-acquired property of their parents and not the ancestral or co-parcenary or HUF property of their parents. However, at present, the section has been interpreted to include the ancestral property of the parents of the illegitimate child and is not only restricted to the self-acquired property of their parents by the Supreme Court of India (“Supreme Court”), as explained further below.
It is pertinent to note that the provision for illegitimate children in the HSA is only restricted to children who are not given the title of “legitimate children” by virtue of Section 16 of the Hindu Marriage Act, 1956 (“HMA”), i.e. children born out of void or voidable marriages, and are not “clothed with legitimacy under Section 16 of the HMA” and the same was held in the case of Rasala Surya Prakasarao v Rasala Venkateswararao (26). Further, Section 16 of the HMA is applicable only when there exists a marriage between the parents of the illegitimate children, a marriage which may be null and void as per the provisions of the Act (27). In the event, that there is no marriage between the parents of the illegitimate child, then the provisions and benefits of Section 16 of the HMA will not apply (28). Therefore, the provisions of the HSA i.e. Section 3(1)(j) will apply and illegitimate children not born from a void or voidable marriage, will only have a right to inheritance the absolute property of their mother only and not that of their father.
As briefly stated earlier, Section 16 of the HMA has been interpreted to include the ancestral property of the parents of the illegitimate child and is not only restricted to the self-acquired property of their parents by the Supreme Court. This interpretation is a welcome interpretation as it secures a more liberal interpretation to the inheritance rights of illegitimate children, and is attempting to change the existing narrative surrounding these rights, notwithstanding that it pertains only to those children born out from a void or voidable wedlock and not those children whose parents do not share any marital relations between themselves. In the case of Revanasiddappa v. Mallikarjun (29), 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. The Supreme Court disagreed with the rationale in previous cases (30) which held that illegitimate children do not have any right in the ancestral property of their parents and only have a right in their self-acquired property. The reason for the disagreement was that since the constitutional values enshrined in the Preamble of our Constitution focus on the concept of equality of status and opportunity and also on individual dignity, the 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.
Further, the Supreme Court observed that a child born in such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage. On the partition of an ancestral property, the property falling in the share of the parents of such children is regarded as their self-acquired and absolute property and therefore it is illogical for the children to not have any share in such property since such children are equated with legitimate children of valid marriage. However, even now illegitimate children can exercising their right in an ancestral property by asking for a partition upon the death of their parents and not during their lifetime. A caveat does exist which this precedent; the Court has referred the matter to a lager bench since the already existing narrative has been propounded by benches of the same strength, i.e. two judge bench and therefore this case does not as such overrule the existing narrative, but can be regarded as a step towards awarding illegitimate children a semblance of inheritance rights under the Hindu personal laws.
The inheritance rights of illegitimate children who have subsequently converted to another religion is also adequately addressed and interpreted by the Courts, through various case laws. In the event that a Hindu converts to Islam or any other religion, then he/she, being an illegitimate child, is still entitled to his/her father’s intestate property as the right to inheritance is not a choice but it is by birth and renouncing a particular religion and converting to another is a matter of choice and cannot cease relationships which are established and exist by birth (31). Further, Section 26 of the Hindu Succesion Act, 1956 only applies to the right of succession of children born to a convert after conversion and does not disqualify the convert from succeeding to the property of his parents (32).
In Muslim law, as stated above, rights of illegitimate children are not recognised and as a result, they are not conferred with any right to inherit their parent’s property or that of the relations of their parents (33). Amongst members of the Shia and Sunni sects, an illegitimate child is not entitled to inherit property from either of his parents but in Hanafi law, an illegitimate child is entitled to inherit property from his or her mother. Further, children born from an irregular marriage are considered to be legitimate children and therefore possess rights in the property of their parents but children born out of void marriages are illegitimate children and are not entitled to inherit the property of their parents (34), unless the parents belong to the Hanafi sect which would confer upon the child rights in his mother’s property.
The laws of successions amongst Indian Christians or those domiciled in India are governed by the ISA. Therefore, by virtue of Section 21 of the IDA, those children begotten from void marriages that are annulled under grounds stated in Section 19, other than the ground that a former spouse was actually living and the subsequent marriage was contracted in good faith and with the belief that the former spouse was actually dead and on the ground of insanity, are considered to be illegitimate children and do not have a right to inherit their parents property. Therefore, there exists a distinction on the grounds on which a marriage has been annulled in order to confer upon children a status of legitimacy and subsequently award them any inheritance rights. It is pertinent to mention that children begotten out of any other form of wedlock, void or voidable, which is not covered by the provision of the IDA, are considered to be illegitimate children.
The ISA precludes illegitimate children from inheriting their parents’ property. Under Section 32 of the Act, intestate property devolves upon the husband or wife or those who are “kindered” of the deceased. “Kindered of the deceased” refers to those who are related to persons who are “descended from the same stock or common ancestor” (35). Further, the ISA explicitly excludes illegitimate children from inheriting any property of their parents by specifying that unless it is otherwise stated in a Will, the word child, son, daughter or any relationship denotes only a legitimate relative and in the absence of such a legitimate relative, a person who has acquired at the date of the Will, the reputation of being such relative (36). The only mention of illegitimate children in the ISA is to determine their domicile and which would be determined according to the country in which his mother is domiciled (37). Further, in the event that a bequest falls under the provision of Section 109 (38) of the Indian Succession Act, 1925, then an illegitimate child cannot be construed as a “lineal descent” of the legatee (39). Therefore, the ISA solely defines certain relations simpliciter and does not extend to other relations than those flowing from lawful wedlock.
It is important to note that the term “child” in Section 100 of the ISA, always applies exclusively to a legitimate child. This has been discussed at length in the case of Emma Agnes Smith vs Thomas Massey (40). It was held by the Bombay High Court that if an illegitimate child was to share equally with a legitimate son, one being the only son known to Christian law, then it would be wholly repugnant and impossible. Further, if there are two sisters who are illegitimate daughters and one sister has a son, the son is not treated as a legitimate relation of his aunt/ mother’s sister and cannot inherit her property as a descendant. It is pertinent to note that though this case was adjudged prior to the enactment of the Indian Succession Act, 1925, however the provisions of the old Act were interpreted whose corresponding sections, are in the present Act in a verbatim manner.
The case of Re: Sarah Ezra vs Unknown (41), re-affirmed the Court’s stance in the case of Emma Agnes Smith, and stated that even through the decision in the Emma Agnes Smith case was in the year 1906 and the present applicable Act was passed in 1925, the ordinary rule for the interpretation of statutes must apply and where words or expressions in a statute are plainly taken an earlier statute in pari materia and have received judicial interpretation, it must be assumed that the legislature was aware of such interpretation and intended it to be followed in later enactments. Therefore, the Hon’ble High Court of Calcutta held that the term “child” in the part of the Act applicable to Christians, does not include an illegitimate child.
The Hon’ble Kerala High Court observed in the case of Jane Antony v. Siyath (42), while deliberating on the right of succession of illegitimate children born to Christian parents that there does not exist any reason or logic in denying illegitimate children a right to inherit/succeed to their parents’ property intestate as is the case in some religions in India and in several countries considering that a secular provision like Section 125 of the Code of Criminal Procedure, 1978 exists which does not discriminate between legitimate and illegitimate children and entitles all children, irrespective of their legitimacy, to seek maintenance. The Hon’ble Court further observed that since children have no role to play in their birth and are actually born to their parents, then they should not unnecessarily suffer for the follies committed by their parents. The Court therefore urged the Central Government to enact a legislation akin to that of Section 125 Code of Criminal Procedure, 1978 or separate laws for members of different religions which confers a right of succession on all illegitimate children irrespective of their religion. Thereafter, the One Hundred and Tenth Report of the Law Commission, February 1985 on The Indian Succession Act, 1925 recommended that the term “child” be defined as it is not done presently and to include an illegitimate child. Further, the report recommended that the rules of devolving in Section 37 should also include right of devolving of the property upon illegitimate children. A bill was thereafter introduced in the Parliament to include adopted and illegitimate children in the definition of a “child”. However, the Bill lapsed and the requisite changes have not been enacted so far.
As with several other rights awarded to illegitimate children, the natural guardianship of illegitimate children is governed by the personal laws of the community to which the child or the parent belongs to. Amongst Hindus, the Hindu Minority and Guardianship Act, 1946 states that the natural guardians of an illegitimate minor boy or an illegitimate minor girl is the mother and after her, it is the father (43). Therefore, the natural guardians of illegitimate children is adequately addressed under Hindu Personal Laws.
In Muslim Law, since illegitimate children are considered to be children belonging to no one, they do not have a natural guardian and the biological father is not automatically considered the natural guardian of the illegitimate child. Amongst the Hanafi sect, the mother of an illegitimate child is considered to be the child’s natural guardian till the time the child attains the age of 5 years old. However, the Hon’ble Supreme Court of India stated in the case of Gohar Begam v. Suggi (44), that under Muslim law, the mother (appellant) is entitled to the custody of a minor illegitimate daughter regardless of who the father is and the putative father does not have any legal right to the custody of the minor child.
n Christian Law, since illegitimate children are awarded nominal rights, an illegitimate child does not have a natural guardian as prescribed by law. However, in the case of ABC vs State (NCT of Delhi) (45), the Supreme Court, dealt with the question of whether an unwed (in this case Christian) mother is to notify the putative father of the birth of the child. With respect to custody and guardianship of a minor child born to an unwed Christian mother, the Supreme Court held that an unwed mother possesses primary custodial and guardianship rights over the children and the father is not conferred with an equal position merely by virtue of his having fathered the child. Further, the Supreme Court recognised that unwed Christian mothers are not awarded with guardianship rights in the same manner as unwed Hindu mothers are awarded. Therefore, it can be said, by applying this precedent, that the natural guardian of an illegitimate child whose mother is a Christian or has been raised a Christian is the mother and she does not need to inform the putative father about the birth of the child for the purpose of obtaining a guardianship order from any concerned court.
Opinion and Conclusion
The rights conferred upon illegitimate children are limited and the limited nature of these rights is deeply discriminatory. . Illegitimate children suffer the consequences of the decisions of their parents and suffer due to reasons beyond their control. Further, society, being unkind and oblivious to their welfare, add to the suffering of these children by stigmatising and actively discriminating against them in terms of social acceptance and interactions. The law, being uneven adds to the misery of these children by disentitling them from several rights that are generously given to their legitimate counterparts. India, being a religiously diverse country, has to account for the religious sensibilities of all and therefore the law with regard to rights of illegitimate children is reflective of this and is mostly biased towards protecting the rights of legitimate children. However, India is yet to eradicate any form of discrimination faced by illegitimate children, as compared to several other foreign jurisdictions.
The maintenance rights conferred upon illegitimate child to claim maintenance is uniform across all communities due Section 125 CrPC. If the religion of the parents of the child or that of the child does not grant maintenance rights to illegitimate children, then the child can seek refuge in secular laws and does not need to be distressed over lack of financial security and fulfilment. However, the problem arises in case of inheritance, succession and guardianship rights due to the lack of secular laws in this realm. 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, in the event that 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 void or voidable wedlock and have not address the cause of children born to parents who have no marital relations.
Muslim and Christian personal law entirely discriminate against illegitimate children by denying them recognition in toto. While Muslim law does recognise the legitimacy of those children born from valid or voidable marriages, it does not confer any status of legitimacy on those born from void marriages and on those born to parents who do not have any marital relation and consequentially it does not confer any rights of inheritance or maintenance on them as well. Similarly, Christian law only recognises children born from certain type of null marriages and discriminates against children born from other types of null marriages or born to parents who do not have any marital relations by not awarding them with inheritance rights at par with their legitimate counterparts. Further, the ISA does not address the inheritance rights of illegitimate children and various courts have read the term “child” in the Act as to not include an illegitimate child.
Another limitation in the rights conferred upon illegitimate children is the determination of the religion of these children. This limitation particularly poses as a problem vis-à-vis inheritance rights since one is bound by the rules codified in personal law due to absence of any secular legislation. To determine the religion or domicile of a child or that of their parents is a cumbersome process and several, often unfair factors must be considered. Often it is not possible to ascribe a particular religion to a child as the child may have been raised an atheist or may have been born to parents who are atheists or may have been born to parents belonging to different religions. In such a situation, it is difficult for the child to have its adequate and rightful remedy in law as the very essence and root of the rights of the children is the codified religious personal law which itself is difficult to gauge.
Another brazenly discrimination in the rights of illegitimate children, is the unlimited burden placed on the mother of these children. Two individuals are equally responsible for the birth of a child and both these individuals are equally responsible for the welfare and upbringing of the child. However, in most religions and even in codified law in India, an unfair and unilateral burden is placed on the mother of the child, especially in terms of inheritance and guardianship rights conferred upon illegitimate children. For example, Muslim law does not confer upon illegitimate children any rights. However, the only school of jurisprudence amongst Muslims which recognise illegitimate children are the Hanafi’s and the mother is placed with the burden of raising these children by appointing solely her as the guardian and giving the children a right only in her property. Similarly, in Christian law, an unfair burden is placed on the mother of the child by appointing her as the guardian. In Hindu Law as well, if children are born to parents who have no marital relationship between them, then the illegitimate child cannot inherit the father’s property and can only inherit the mother’s property and the mother is considered to be the natural guardian of an illegitimate child and then the father, which is not the case amongst legitimate children, once again placing immense constraints on the mother of these children.
A way to address the brazen discrimination in the inheritance rights of illegitimate children is to enact a secular legislation, akin to Section 125 CrPC, which awards all illegitimate children, irrespective of their religion or that of their parents or the status of their parents’ relationship, a right to inherit in equal capacity as legitimate children or their legitimate siblings, in the property, including separate, self-acquired or ancestral of their parents. The discrimination and classification of various types of permissible inheritance has to be abolished and a uniform, equal opportunity to inherit property must be available to illegitimate children and by awarding this right through a secular/neutral legislation or law, illegitimate children can seek refuge in the secular law if their personal law does not permit them to inherit their parents’ property. A secular legislation must also be adopted to assign illegitimate children natural guardians, and this responsibility should be conferred upon both the parents. Further, those provisions which single out the mother and place an additional and added burden on her, while absolving the father of any responsibility, must be struck down and invalidated as unconstitutional in order to pay attention to illegitimate children who face double vulnerability of being children and also lacking protection and social legitimacy of family. Such legislative reforms will attempt ensure that the discrimination faced by illegitimate children is slowly eradicated and that they do not continue to be at a disadvantageous position compared to their legitimate counterparts.
Prachi Dutta is a practising Advocate in New Delhi. She studied History at Hindu College, Delhi University and thereafter pursued LL.B Hons. from Jindal Global Law School, Sonepat.
1. J. Roche, in International Encyclopedia of the Social & Behavioral Sciences, 2001
2. Such as England with the enactment of The Family Law Reform Act 1969
3. Rights and Status of Illegitimate Children, Kusum, Journal of the Indian Law Institute, Vol. 40, No. 1/4, Human Rights Special Issue (January-December 1998)
4. Article 25: (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
5. Article 2 of Universal Declaration of Humans Rights
1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.
6. Indian man to sue parents for giving birth to him By Geeta Pandey, BBC News, 07.02.2019 https://www.bbc.com/news/world-asia-india-47154287
7. Section 112 of the Indian Evidence Act, 1872
8. Nandlal Wasudev Badwaik v Lata Nandlal Badwaik AIR 2014 SC 932
9. Section 16 (pre-amendement)- Legitimacy of children of void and voidable marriages.—Where a decree of nullity is granted in respect of any marriage under section 11 or section 12, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity:
Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void or annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.
10. Thirumathi Ramayammal v. Thirumathi Mathummal [AIR 1974 Mad 321]
11. Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi [(1996) 4 SCC 76]
12. Tyabji, Mohammadan Law, 3rd Edn.
14. Habibur Rehman Chowdhury v. Altaf Ali Chowdhury (1921) 23 BOMLR 636
15. Mulla’s Principles of Mohammedan Law, 21st Edn.
16. Mulla’s Principles of Mahommedan Law, 6th Edn.
17. Adam v Mohammad (1990) 1 KLT 705
18. Mohd. Salim v. Shamsudeen, (2019) 4 SCC 130
19. Section 19 of Indian Divorce Act,1869
20. Section 21 of the Indian Divorce Act, 1869
21. Section 21(viii)and (ix) of The Hindu Adoptions and Maintenance Act, 1956
22. Section 20(1)
23. AIR 1963 All 143
24. AIR 1974 Mad 232
25. Section 3(1)(j) of the Hindu Succession Act,1956
26. AIR 1992 Ap 234
27. Mayne’s Hindu Law & Usage, 15th Edition,
28. Babulal & another v. Natthibai & Another AIR 2013 MP 134
29. (2011) 11 SCC 1
31. Balchand Jairamdas Lalwant v. Nazneen Khalid Qureshi (2018) 2 Mah LJ 804
32. Nayanaben Firozkhan Pathan @ Nasimbanu Firozkhan Pathan v. Patel Shantaben Bhikhabhai, Special Civil Application No. 15825 of 2017 decided on 26-9-2017
33. Pavitri vs Katheesumma, AIR 1959 Ker. 319
34. Supra at 20
35. Section 24, ISA
36. Section 100, ISA
37. Section 8, ISA
38. Section 109: When bequest to testator’s child or lineal descendant does not lapse on his death in testator’s lifetime. : Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime of the testator, but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the Will.
39. Raja Jagdish Chandra Deo Dhabal Deb v. Rai Pada Dhal, AIR 1941 Pat. 458
40. (1906) 8 BOMLR 322
41. AIR 1931 Cal 560
42. (2008) 4 KLT 1002
43. Section 6(b) HMGA, 1956
44. AIR 1960 SC 93
45. (2015) 10 SCC 1
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