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. Legitimacy is determined by two factors – the marital relationship of the parents and the legal status of this relationship.
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 . In the event of a DNA test, this presumption is superseded . 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 . 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 .
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 . 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 . However, amongst, Hanafis, an illegitimate child is recognised as a lawful child of the mother who is obligated to take care of the child 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 .
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) . 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) but a marriage in which one party withholds the consent for marriage will be a void marriage .
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 .
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 .
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 . 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.
Right to inheritance, maintenance and the Governance of illegitimate child :
- Right to inheritance –
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 .
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 . 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 . 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 . 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 , 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 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 . 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 .
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 . 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 , 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” . 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 . 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 . Further, in the event that a bequest falls under the provision of Section 109 of the Indian Succession Act, 1925, then an illegitimate child cannot be construed as a “lineal descent” of the legatee . 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 . 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 , 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 , 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.
- Maintenance Rights –
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 . Further, the Act stipulates that any Hindu, being a male or female, is duty bound to maintain their legitimate as well as illegitimate children 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.
Muslim laws seems to confers no obligation of maintenance of illegitimate children on either parents, though the Hanafis recognize the obligation of nurture till the child attains the age of seven; the Shias do not recognize even this obligation.
Though the father under Muslim Law is not bound to maintain his illegitimate child, the researcher thinks Section 125 of the Criminal Procedure Code, 1973, (which should ensure that all such unfortunate children are maintained by their fathers) however binds such a father to pay for the maintenance of the child. The father would be liable to pay this amount even if the mother refuses to surrender the illegitimate child to him.
In the case, Sukha v. Ninni, it was held that, “An agreement to maintain an illegitimate child, for which the Mohammedan Law as such makes no provision, will in my opinion not have the effect of defeating the provisions of any law. As a matter of fact, maintenance of illegitimate children has been statutorily recognized under Section 125 of the Criminal Procedure Code of 1973 in our country and it is in consonance with this wholesome policy that the offsprings born under such circumstances are to be provided for and should not be left to the misfortunes of vagrancy and its attendant social consequences.”
Whereas, in Pavitri v. Katheesumma where an illegitimate daughter born to a Muslim father and a Hindu mother brought a claim for maintenance from the assets of the dead father it was held that though “an illegitimate does not inherit properties of its putative father or his relations and from this it would follow that an illegitimate child cannot claim maintenance from the assets left by its putative father and which are in the hands of the heirs of the putative father ….even though S.125 of the Cr P C imposes a statutory obligation on a Muslim father to maintain his child even an illegitimate.”
The Court further held, “whether the principles of Hindu Law apply or whether the principles of Muslim Law apply, the plaintiff in this case who was an illegitimate daughter born of a Mohammedan male and a Hindu female was not entitled to claim maintenance from the putative father or from the assets left by him apart from any rights that may have been conferred on her by Statute (Cr P C). Since the plaintiff had not based her claim upon any statutory right her suit for recovery of maintenance from the assets of her putative father was bound to fail.”
In Christian Law the child is bound to be maintained as per the secular law of the land as provided by the Code of Criminal Procedure, 1973. The main provision regarding grant of maintenance is contained in Section 125 of the Code.
It says, “Order for maintenance of wives, children and parents,-
(1) If any person having sufficient means neglects or refuses to maintain – ….
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself,…
…..a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate,as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of such warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.”
Hence, it is now clear that even though the codified law of the Christians of India does not speak of maintenance of illegitimate children, the secular law governing the country’s masses has made it compulsory for parents of illegitimate children to support them (if not the successors of the illegitimate children) in the form of a monthly amount that is to be fixed by the Magistrate.
This will ensure that the neglected illegitimate child “are not left beggared and destituted on the scrap-heap of the society and thereby driven to a life of vagrancy, immorality and crime for their subsistence.”
- Guardianship –
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 . 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 , 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.
In 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) , 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.
The apathy of illegitimate children Justice, it seems, has pervaded the illegitimate children in our country, for no mistake of their own. The legislature thinking reflects awareness of this area and it has seized the problem in only a limited sphere by conferring the status of legitimacy on the children born of void and voidable marriages and granting them a right to maintenance only under the Section 125 of the Code of Criminal Procedure, 1973
It was considered that debarring the illegitimate child from inheriting the property of its parents would deter further generations from entering into a sexual relationship outside marriage and would enforce a strict regime of proper sexual mores in society. However, trends and statistics have shown that the problem of illegitimate births in the country has been increasing at an alarming rate, hence the above argument to justify the exclusion of illegitimate children from inheriting property of parents cannot be bought and falls flat.
To conclude, even though there are laws that try to ensure that these children are also taken care of, it still cannot be said that these children are treated equally. It becomes a more difficult job to work through due to the social discrimination and stigma attached to these children who are undeserving of it. It is a big issue in India and needs to be addressed more wholly across social and legal contexts.
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