RIGHTS OF ILLEGITIMATE CHILDREN : With Special Reference to Hindu Law

Law has classified children into two categories, namely, the legitimate and illegitimate children. The legitimate children are the outcome of a marriage valid in the eyes of Law while those who are born out of wedlock or where the marriage is invalid, irregular or void are said to be illegitimate children. As regards legitimate children there is no problem of their legal rights but there do arise certain problems in case of illegitimate children. Many of the countries like Sweden face many legal problems of high amplitude relating to illegitimate births. They relate to the maintenance, parentage and succession et cetera. However, in our country the cases of such birth are not many. It may be due to numerous factors like marriages in early age and discouragement of social intercourse of children by the parents. Our Legislature too has been well aware of the gravity of this problem and so it has conferred status of legitimacy on children born of void and voidable marriages and thus has tried to nip the problem in the bud. 2. Now let us analyse various provisions relating to the paition of illegitimate children under various personal laws in our country. Hindu Law provides that irrespective of the fact that a rnarriige was null and void under Section 11 d the Hindu Marriage Act,1955, any child of such marriage who would have been legitimate, if the marriage had been valid, shall be legitimate whether such a child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 and whether or not a decree of nullity is granted, in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this A&. 3. The children of voidable harriage are leglimate for all ~ r p o s e s unless a decree of annulment is obtained by either of the parties to the marriage. The interest of the children who become illegitimate by virtue of * LL.M (Lucknow), LL.D. Scholar, Lecturer in Dayanand Wege of Law, Kanpur,

Editor KANPUR LAW JOURNAL, Life Member Central India Law InstjMta, Jabelpw (M.P.) 1. See S. 16 of Hindu Marriage Act, 1955, See for sartrk lew on the point Srikanta Mishra, Ancient Hindu Marriage Law and Practice, Deep & Deep P u b l i i s , New DelM. 1994.

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such a decree is safeguarded by an enabling provision uls 16(2)- of Hindu Marriage Act which reads - where a decree of nullity is granted in respect of a voidable marriage us 12 any child begotten or conceived before the decree is made, who would have been legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. . 4. The aforementioned provisions are enabling provisions and so they cannot be construed so as to confer upon any child of null and void marriage uls 11 any right in or to the property of any person except the parents. It is notable that these provisions do not wash away the stigma of illegitimacy for all purposes as under the Special Marriage Act, 1954* and the Hindu Marriage Act, 1955~ such a child is not entitled to inherit the property of any person other than the parents. Besides, nothing has been said about the children who are illegitimate because of being born of void marriage otherwise than under these Acts and also the children born of concubines. Thus a confusion exists relating to the distinction between children referred to under these provisions and those who have not been referred to. 5. Under the present legal position legitimate children have been put to serious economic difficutties. Besides, they have also to suffer social degradation and mental torture. If a father commits bigamy and procreates Rtbre children then it may be taken as if he has decided to have his wealth be not for his legitimate children and wife but also for unlawful wife and her children. it is here that an illfeeling takes birth that affects adversely the whole family. Does it not appear that instead of ameliorating the lots of illegitimate children the legislature has created anomalies and hardships for the legitimate ~hiklren?~ t

Hindu Succession Law is Biased : 6. Thus the children of void and voidable marriage have been conferred the status of legitimacy under the Hindu Marriage ~ c t . 5

After

2. S. 2 ( ) of the Special Marriage Act,1954. 53 3. S.16(3) of the Hindu Marriage Act 1955. 4. See Shriniwas Gupta Need to Change Ilkgtimacy Law published in Northern India Patrika, Lucknow, edn. dt. July 12, 1989, P.04. ti. S.16

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the amendment made in 1976 the child of a void marriage is legitimate irrespective of a decree of nuliiy being passed or not6 They are legitimate even when the marriige is held to be void otherwise than on a petition under the Act. Similarly the children of voidable marriages are legitimate even on the passing of decree of nullity as though the marriage was dissolved by the decree of divorce instead of being ann~lled.~ However, it must be noted that for application of S.16 it is necessary that marriage must be null and void d s 11 or it must have been annulled by a decree u/ s 12. Thus it is amply clear that all itlegitimate children have not been legitimatised uJs16. For instance children of no marriage or rnaniage without essential ceremonies are not covered under this section. 7. The Hindu Succession Act enables the legitimate children to succeed to the property of their parents-father and mother but regarding illegitimate children it provides that they can s w t W to the property of their mother only because the word related uls 3(1) (J) means related by legitimate kinship and a proviso attached Z S.3(i) (J) says that illegitimate o children shaU be deemed to be related to their mother and to one another and their descendants shall be deemed to be related to them and to one another. This makes explicit that the Hindu Succession Act does not recognise illegitimate retationslup with the father. 8. Just to have a glanoe at the judicial attitude on the point we find that the Bombay High Court in a c a d observed that since a chitd of void marriage is illegitimate he is not entitled to succeed to the estate of him father under Hindu Succession Act white in Laxrnibai caseQthe same court held that the child of void marriage is entitled to succeed to the property of his father. It is to be noted that in aforementioned Dadoo Atmaram case S.16 of Hindu Marriige Act was not brought to the attention of the Court and in L x i a case the Court dd not consider am i b i significance of the expression related in the proviso to S.3(i)(S) SHAct. of Resolving the controversy between the rulings given in these two cases

the Division Bench in Shantaram caset0 held that the children of void and

6. S.16(1) 7. S.17(2) 8. Dadoo Atmaram v. Raghunath, AIR 1979, Bom.176. 9. Laxmibai v. Limbatmi, AIR1983 Bom.222. 10. Shantaram v. Durgabar. AIR 1987 Born. 182.

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annulled voidable marriages are entitled to the property of their father as legitimate children. The Bench observed that legitimacy created by S.16 of Hindu Marriage Act must be read into as part of the definition in SB(i)(J) of Hindu Succession Act. 9. Regarding the right of son born out of void marriage, to share the joint family property under Mitakshara law, various Courts in many cases including that of J Sujata v. J Krishna Prasadl1observed that though the children of void marriages are made legitimate, S.16(3) of Hindu Marriage Act forbids the conferment of any right on them in the property of any person, other than the parents. Therefore, the legitimatised son cannot get a share in the property which belongs to coparcenary of which his father is a member and that the legitimatised son should succeed to the property on the death of his. paients. Whereas, in many other cases including Goverdhan Singh v. Hiraman Singh12 and Margbandhu v. K Mandhiri13 they held, since the son of void marriage is made legitimate, he is entitled to share in the coparcenary property. Finally in the case of Rasal Prakash Rao14a Division Bench of AP High Court ruled that the illegitimate sons of dwijas are entitled to maintenance only. The illegitimate sons of a sudra by a permanently kept concubine has status of a son and is a member of the family but his rights are limited as compared to those of a son born into wedlock. He has no right by birth and therefore, he cannot demand partition during his fathers lifetime. If a partition is made during fathers lifetime he will be allotted a share by fathers choice. And in otherwise case, the brother should make him a partaker of the moiety of a share. Thus under Mitakshara Law an illegitimate son succeeds to the fathers estate as a coparcener with the legitimate son with the result that on the death of the father before partition he becomes entitled to the whole estate by survivorship. In case of no legitimate son, the illegitimate son would be entitled to half of his fathers estate where there is a widow, daughter or daughters son of the last male holder and where any one of the three heirs is absent the entire estate of his would devolve on him.15 10. In essence this decision says that the legitimatised son does not 11. AIR 1992 AP 291.

12. (1980)2 APLJ 172. 13. (1983)96 Mad.LW 448. 14. AIR 1992AP 234. 15. Raghuvendra Rao v. Rajeshwar Rao, (1974) 11 APWR 245.

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acquire any right by birth in the joint family property even by virtue of S.16 of Hindu Marriage Act. He becomes coparcener with the other legitimate sons after fathers death. On partition he shares equally alongwith other coparceners. The intention of the Legislature is to confer on the legitimatised child a right in or to the property of the father. If the father is in possession of ancestral property the legitimatised son acquires an interest in it by birth and if the father is in possession of separate property he succeeds as a class I heir after the death of the father. Just to make the pbint more clear the legitimatised son becomes a coparcener with his father and he is entitled to share in the joint family property during the lifetime of the father and even if other coparceners are present. Under the English Law contained in the Family Law Reforms Act, 1987 the illegitimate children enjoy full rights of succession. 11. The illegitimate children must be given right equal to other children because it is the law itself which has categorised them as illegitimate and legitimate. The children have done no wrong. They should not be punished by curtailing their right for no fault on their part. 12. As regards Muslim Law, it does not recognise any process by which status of legitimacy may be conferred on an illegitimate child. However, the traditional Muslim law provides for the acknowledgement of legitimacy but the idea behind it is not always to legitimate the child but it is from a different perspective. A Muslim marriage needs no religious formalities for its constitution. It may be performed only by observing some secular formalities so the cases regarding doubts in the validity of Muslim marriage are comparatively higher. With the result legitimacy of the children born out of such marriage is generally doubted. It is only because of this fact that Muslim law enables a father to acknowledge the paternity of a son under certain legal situations. It may be noted that under Muslim law a child to be legitimate must have been an offspring of a man and his wife or a man and his slave. Rest all the children are treated to be illegitimate. They are offsprings of Zena, that means jllicit connections. The acknowledgement must not be merely of sonship but must be made in such a way that it shows that the acknowledgement meant to accept the other, not only as his son but as his legitimate son.16

In other words under Muslim law only legitimate sons can be subjected to acknowledgement and there is no rule which may confer the status of legitimacy upon an approved illegitimate son. 16. Habibur Rehman v. Altaf Ali (1921) 48 IA 114.

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13. In our country an illegitimate child cannot inherit to his father, even if the genetic father is known. As a matter of fact a father cannot cease to be a father only because of being not lawfully married to the mother of the child. S is rather unjust and unreasonable to deprive a child of the right to t inherit the property of his generator or procreator in case su& a person is known. Barring provision of Evidence Act as contained in S.112 providing that a child born to married woman having access to her husband shall be conclusively presumed to be the child of the husband, in other cases it does not appear reasonable as to why an illegitimate child shall not inherii the property o its genetic father.17 f

17. See also Justice AM Bhattacharjee, Rights of the Child under Personal Laws published in the report of Seminar Rights of the Child P.71, published by NLSlU and UNICEF.