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’. This implies that an illegitimate child would only have the right to his father’s self-acquired property, not his ancestral property. However, according to a Supreme Court ruling in 2011, children born out of wedlock have the the right to stake a claim to their father’s self-acquired property as well as ancestral property. Despite this ruling, there has been confusion regarding the right of illegitimate children to ancestral property. This article discusses various rights of illegitimate children over property within the context of the Hindu Personal Laws.
Provisions under the Law :
Originally, the Hindu Marriage Act provided that a child born out of a marriage declared void or annulled by the court will have the same status as that of marriage dissolved by decree of divorce. But the courts have interpreted Section 16 of the Hindu Marriage Act differently; the section was applicable only if a decree of nullity was passed by a court; in the absence of such a decree, the children remained illegitimate in the case of void marriages. After the Marriage Laws (Amendment) Act, 1976, was passed, Section 16 was amended and this loophole was removed. Now, the children of all void and voidable marriages shall be deemed to legitimate. However, the children born out of void or voidable marriages cannot inherit the property of their relatives.
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 can be a coparcenary in 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.
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.
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.
Though the amendment of 1976 in Section 16 now enacts a legal fiction deeming the illegitimate children as legitimate for all practical purposes including succession to their family properties but the court’s jurisprudence until now has been: Child born of void or voidable marriage can only claim share in self-acquired properties of parents not in ancestral property. Children born out of live-in relationship do not have an inheritance right over the ancestral property.
Relevant Judgements :
In Gurnam Kaur v Puran Singh (1996) 2 SCC 567, it was held that, If the marriage of child’s mother with her previous husband is not legally dissolved, he won’t be considered illegitimate if born out of second marriage. Declaration of Validity of marriage on a petition of either party declare marriage as nullity under a decree which was pre-condition under Section 12 of Act, 1955 is done away with.
A Bench of Justices G.S. Singhvi and A.K. Ganguly, hearing an appeal by Revanasiddappa, differed with earlier judgments in interpreting Section 16 (3) of the HMA that “such children are only entitled to the property of their parents and not of any other relation.”
Stating that it was constrained to take a different view, the Bench referred the matter to Chief Justice S.H. Kapadia for posting it before a larger Bench. The Bench said, “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. 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. This is the crux of Section 16 (3).”
Writing the judgment, Justice Ganguly said that under Section 16 (1) and 16 (2), it was expressly declared that children born in a void or voidable marriage, (viz. second marriage) should be legitimate.
“If they were declared legitimate, then they cannot be discriminated against and they will be on a par with other legitimate children and be entitled to all the rights in the property of their parents, both self-acquired and ancestral.”
The Bench said that, “the prohibition contained in Section 16 (3) will apply to such children with respect to property of any person other than their parents. We find it interesting to note that the legislature has advisedly used the word ‘property’ and has not qualified it with either self-acquired property or ancestral property. It has been kept broad and general.”
Underlining the need for a liberal interpretation of Section 16 (3), the Bench said: “with changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. The concept of legitimacy stems from social consensus, in the shaping of which various social groups play a vital role.”
Constitutional Validity :
The Bench quoted Article 39 (f) of the Constitution which says “that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Right to property is no longer fundamental but it is a constitutional right and Article 300A contains a guarantee against deprivation of property right by authority of law.”
The constitutional validity of Section 16(3) of Hindu Marriage Act was challenged before this Court and upholding the law, this Court in Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt.) & Ors. v. K. Devi and Ors., [(1996) 4 SCC 76], held that Hindu Marriage Act, a beneficial legislation, has to be interpreted in a manner which advances the object of the legislation. This Court also recognized that the said Act intends to bring about social reforms and further held that conferment of social status of legitimacy on innocent children is the obvious purpose of Section 16.
In Gur Narain Das & Anr. v. Gur Tahal Das & Ors., [AIR 1952 SC 225], a Bench comprising Justice Fazl Ali and Justice Bose agreed with the principle laid down in the case of Vellaiyappa Chetty (supra) and supplemented the same by stating certain well-settled principles to the effect that “firstly, that the illegitimate son does not acquire by birth any interest in his father’s estate and he cannot therefore demand partition against his father during the latter’s lifetime. But on his father’s death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son(s) with a right of survivorship and is entitled to enforce partition against the legitimate son(s) and that on a partition between a legitimate and an illegitimate son, the illegitimate son takes only one-half of what he would have taken if he was a legitimate son.” However, the Bench was referring to those cases where the illegitimate son was of a Sudra from a continuous concubine.
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