Abstract
This research delves into the domain of property rights for illegitimate children across various personal laws. The study then navigates through the influence of judicial decisions on the evolution of property rights for illegitimate children. A comparative analysis of court rulings sheds light on how these legal precedents have shaped the inheritance landscape. Furthermore, the research investigates the role of socioeconomic factors in determining the enforcement of property rights. In conclusion, this research amalgamates insights from the examination of property rights, judicial decisions, and socioeconomic factors to offer a nuanced understanding of the property rights landscape for illegitimate children.
Keywords
Illegitimate, Personal Laws, Legal Status
Introduction
‘Illegitimate’ comes from the Latin root ‘not according to the law.’ According to the Oxford Dictionary, an illegitimate child is ‘born of parents not lawfully married’. The two factors that determine a child’s illegitimacy are:
i) whether the relationship between the parents is legal
ii) whether the parents are married or not.
Even though a child’s illegitimacy has nothing to do with them, they nevertheless have to face the consequences legally as well from society.1
The personal laws in the Indian judiciary system impose limitations on children born without wedlock. An illegitimate child has the right to inherit only mother’s property under Hindu law due to provisions in the Hindu Succession Act 19562because they are considered to be linked to their mother. The child’s link with the father is not acknowledged. The 1976 modification to the Hindu Marriage Act, 19563added Section 16 to safeguard the rights of children born from
1“Parent and Child. Rights of Illegitimate Child.” The Virginia Law Register, vol. 8, no. 1, May 1902, p. 60 2 Hindu Succession Act, 1956, Act No. 30 of 1956 (India).
3 Hindu Marriages Act, 1955, Act No. 25 of 1955 (India).
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void and voidable unions. The Supreme Court stated in Revanasiddappa v. Mallikarjun4that the section also served the significant goal of shielding such youngsters from the label of ‘bastardization’ (category of “irreputable social types” with thieves, beggars, and prostitutes).
Although the amendment is commendable, its reading in such terms acknowledges the inferior status of an unborn child in society and law.
The ‘Ithna-Ashari’ school (Under Muslim Personal Laws) gives the mother, legal custody of the illegitimate child under Islamic law so that it may be fed and cared for. Additionally, both mother and child share inheritance rights.
There are no explicit provisions in the Indian Succession Act, 19255, which governs intestate succession for Christians and Parsis, that explicitly forbid illegitimate offsprings from inheriting.
Research Methodology
This paper is of Non – doctrinal nature and the research is based on secondary sources for the analysis of the property rights of an illegitimate child under Personal Laws.
Review of Literature
‘Inheritance and Succession Rights of Illegitimate Child under Hindu Laws in India’ by Mansi Bharat Chheda: This article examines the inheritance and succession rights of illegitimate children under Hindu law in India. The paper underscores the urgency of amending Hindu laws to ensure that illegitimate children enjoy equal succession and inheritance rights as legitimate children.
Rights of Children of Void and Voidable Marriages: A Comparison between Hindu and Muslim Personal Laws’ by Vanshika Singh Jaiswal: The legal protections and rights of children born into marriages that are deemed to be void or voidable in India are examined in this study. It tackles widespread myths about the validity of children born in such unions. The primary comparison made in this study is between Muslim and Hindu personal laws on the rights of children born in null and voidable marriages. It is split into two major sections: The concept of void and voidable marriages, the notion of legitimization, and the legal rights
4 Revanasiddappa v. Mallikarjun (2011)
5Indian Succession Act, 1925, Act No. 39 of 1925 (India).
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accorded to children born inside such marriages under Hindu personal laws are all explored in the first section. In the second section, the same subject is explored in relation to Muslim personal laws. The study finishes by comparing the two legal frameworks and making recommendations for additional study.
‘Bridging the gap between the Juvenile Justice Act 2000 and Christian personal law — inheritance rights of adopted and illegitimate children in India’ by Archana Mishra: Common law principles are followed by the Indian Succession Act of 1925 (ISA 1925), which only takes blood links into account when determining inheritance. It denies illegitimate children rights or acknowledges adoptive connections. This omission denies the right to inherit to both adopted and illegitimate offspring. The article also discusses the Shabnam Hashmi case, in which the Supreme Court ruled that adoption should be secular and unrelated to the adopted parents’ religion. While the JJ Act of 2000 gives all Indian residents the ability to adopt, it is unclear how succession laws would affect adopted children’s inheritance rights. The application of ISA 1925 to the inheritance rights of children adopted by Christian parents under the JJ Act 2000 raises an unanswered question.
1. Examination of property rights for illegitimate children under different personal Laws
1.1 Hindu laws
According to Sections 11 and 12 of Hindu Marriage Act,1955.6
Void marriages: An invalid marriage is one that never ever existed. No one in such unions is permitted to modify the status of their marriage. The marriage is deemed to be void if any one of the three conditions—a surviving spouse, a prohibited order, or Sapinda—is true. No party is required to request a declaration of nullity.
The following unions are voidable: The parties are free to choose not to engage in these. Such unions are lawful and enforceable up until the point where the court declares them to be void. Four factors make a marriage null and void:
• Infertility
• The respondent’s mental disease or incapacity to give permission.
6Journal of the Indian Law Institute, January-December 1998, Vol. 40, No. 1/4, HUMAN RIGHTS SPECIAL ISSUE
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• Fraudulently obtained consent
• The female party’s concealment of a premarital pregnancy
Under Hindu law, the rights of an illegitimate child can be divided into these broad categories: 1.1.1 Maintenance rights
Following the codification of laws, both parents are required to support their legitimate and illegitimate children (if present) under Sections 20(1) and (2) of the Hindu Adoptions and Maintenance Act 1956,7provided that the children have not converted to a different religion. Additionally, in the event that one or both parents pass away, an illegitimate child has the legal right to be supported from the estate of the deceased parent until the male child reaches the age of 18 and the daughter marries.
1.1.2 Right over Joint family property and Inheritance rights
According to Section 16(3) of the Hindu Marriage Act of 1955,8children of void or voidable marriages may have their parents self-acquired assets; they cannot assert interests in ancestral property. Similarly, the property of the family cannot be inherited by children born into live-in relationships.
But in SPS Balasubramanyam v. Sruttayan, the Supreme Court declared that ‘if a man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption that they live as husband and wife and the children born to them will not be illegitimate.’ For a child born from a live-in relationship to not be considered an illegitimate child, the parents must have shared a home and lived together for a long amount of time before society recognizes them as husband and wife.
According to the Supreme Court’s ruling in the case of Revanasiddappa v. Mallikarjun, ‘Children born in an illegitimate relationship/Void/Voidable marriage are innocent and are entitled to all rights to property that his parents are entitled to, whether ancestral or self-acquired property.’9
A bench of Justices G.S. Singhvi and A.K. Ganguly disagreed with earlier decisions regarding how to interpret Section 16(3) of the Hindu Marriage Act, 1955, which states that “illegitimate
7 Hindu Adoptions and Maintenance Act, 1956, Act No. 78 of 1956 (India).
8 Hindu Marriages Act, 1955, Act No. 25 of 1955 (India)
9 Revanasiddappa v Mallikarjun (2011)
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children are only entitled to the property of their parents and not of any other relation.” This was during the hearing of an appeal from Revanasiddappa. Due to altering social norms of legitimacy in all countries, including our own, the Bench emphasized the need for a flexible interpretation of Section 16(3) by declaring that what was once viewed as unlawful may now be considered legal. The notion of legitimacy derives from the consensus of society, which is greatly influenced by various social groups.
Smt. Sarojamma and Ors. v Smt. Neelamma and Ors; In this case, the court held that every illegitimate child has the same right to inherit from their parents as a natural legitimate child has, in accordance with Section 16(3). The court went on to say that such a child can be viewed as a co-partitioner for the joint family’s assets owned by the father. The drawback is that the child cannot ask for partition while the father is still living; the request must be made following the father’s death. 10
1.1.3 Guardianship rights
According to Section 6(b) of the Hindu Minority and Guardianship Act of 1956,11 the ‘ mother’ is given preference before the ‘father’ when determining who is an illegitimate child’s natural guardian. Additionally, it applies when both of an illegitimate child’s parents practice Hinduism; if only one parent practices Hinduism, an illegitimate child must be raised in accordance with Hindu custom in order to qualify for Section 6(b) privileges. The rights of an illegitimate child are, however, automatically removed if they convert their religion.12
1.2 Muslim laws
A child can only be regarded as legitimate by Islamic law if the legitimacy of his or her parents’ union has been confirmed. In the absence of paternity, the child is considered to be illegitimate and only has maternity. The paternity or maternal status of a child born in a null marriage is not acknowledged by Shia schools.
1.2.1 Right of Inheritance
10 Smt. Sarojamma and Ors. v Smt. Neelamma and Ors, II (2005) DMC 567
11 Hindu Minority and Guardianship Act, 1956, Act No. 32 of 1956 (India).
12 Radhika Yadav, Illegitimacy: An Illegitimate Concept, 3 INDIAN J.L. & PUB. POL’y 87
(2016).
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There are several schools with laws regarding an illegitimate child’s entitlement to inherit. An illegitimate child cannot establish an inheritance claim against the property of father in any school, in contrast to claims against the mother’s property.
In Hanafi schools, both the mother and the illegitimate kid are entitled to inherit the property of the other, as well as any relatives to whom the illegitimate child is related through the mother, unlike in Shia schools.
1.2.2 Maintenance
According to Hanafi laws, they are eligible for maintenance up until age 7. However, the CrPC, 1973 Section 125(1)(b) and (c)13 allows the illegitimate child to seek maintenance from his or her father. These laws are also applicable where there is no contradiction between personal and general laws because the CrPC is a general law.
1.2.3 Guardianship
The illegitimate children are regarded as “filius nullius” (children of no one) in accordance with Islamic law; yet, the mother retains custody of the child. Accordingly, under Mohamedan law, an illegitimate child has a restricted right to a natural guardian.14
1.3 Illegitimate children’s inheritance rights in Indian Christian laws
Christian law prohibits both the adoption and raising of illegitimate children as well as giving them any inheritance rights. Even though Christian law acknowledges the personality of the unborn child and grants that child inheritance rights, illegitimate offspring are not granted inheritance rights. According to the Indian Succession Act 1925, which states that only legal offspring are regarded as “children” for evaluation and thus, illegitimate children are susceptible to discrimination.
According to Indian Succession Act,1925 an illegitimate child has no claim to any inheritance, not even the property of his or her parent(s), maintenance, or inheritance from either parent. In contrast, Indian Divorce Act,1869 gives illegitimate offspring some validity regarding their property rights.15
13 Code of Criminal Procedure, 1973, Act No. 2 of 1974 (India).
14 Vanshika Singh Jaiswal, Rights of Children of Void and Voidable Marriages: A
Comparison between Hindu and Muslim Personal Laws, 3 Jus Corpus L.J. 1 (2022).
15 Indian Divorce Act, 1869, Act No. 4 of 1869 (India).
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In the Antony v. Siyath case16, the Kerala High Court ruled that an illegitimate kid born to parents who were living as husband and wife was considered to be genuine and qualified to inherit property together with legitimate offspring.
Reference is made to the 110th Report of the Law Commission of India,17 which makes two recommendations to strengthen the legal standing of adopted and illegitimate children under the Indian Succession Act 192518. These recommendations include defining the term “child” to include illegitimate children and amending Section 37 to include them within the definition of “child.” These recommendations seek to provide illegitimate children equal rights and address the unfair treatment they frequently experience in the legal system.
2. Socioeconomic factors and property rights enforcement
Mothers have been criticized for being unfairly treated under illegitimate child laws in a number of places, including India. For instance, these regulations do not take into account the biological connection between the father and the kid in intestate succession proceedings under the Hindu Succession Act 1956.19 They instead hold the mother solely accountable for the child. This strategy has drawn a lot of criticism since it reflects a gendered perspective that is a sort of sex-based discrimination.
Contrary to this constitutional duty, discriminatory practises continue to be used in illegitimacy-related laws. Furthermore, these laws may promote male sexual conceit and irresponsibility. They provide the message that their relationships with illegitimate children are less important than those with legitimate ones, which may deter father involvement with children from non-marital relationships. This point of view stems from the patriarchal idea that women must be restrained through marriage, which contributes to the ongoing stigmatization of single mothers in society.
In the case of Jane Antony v. V.M. Siyath20, the Kerala High Court used a similar line of reasoning to advocate for changes to India’s illegitimacy statutes. The abolition of such
16 Jane Anthony v. Siyath, 2008 (4) KLT 1002
17 110th Law Commission Report (1985)
18 Indian Succession Act, 1925, Act No. 39 of 1925 (India).
19 Hindu Succession Act, 1956, Act No. 30 of 1956 (India).
20 Jane Anthony v. Siyath, 2008 (4) KLT 1002
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discrimination is also required by India’s international duties under the Universal Declaration of Human Rights and the Convention on the Rights of the Child.
An argument that is frequently used is the idea that having sex outside of marriage is extremely unethical and unreligious. The fact that numerous personal laws punish illegitimacy supports this position and gives it credence. This viewpoint is also intimately related to the idea of marriage as a sacred, everlasting bond. The sanctity of marriage and its function in society, according to this argument’s proponents, would be compromised if the law treated children born outside of marriage similarly to those born within it.
However, this indicates that it would have been hard to end numerous unfair and discriminatory practices, like as untouchability, sati, and child marriage, if one had relied just on tradition and the prevalent morality. These practices, which were supported by religion and supported by private laws, are now prohibited by secular legislation.
3. Suggestions and Conclusion
Every child has the fundamental right to experience both parents’ love and care in a tolerant and loving environment. Unfortunately, while doing nothing wrong, illegitimate children in our country, especially those who fall under Muslim Law, face a lack of justice. To punish someone for a crime they did not commit is unfair. Unexpectedly, our legislative authorities have mostly overlooked this important matter, which needs appropriate legislation immediately to address the legal anomalies. Ironically, legislation changes intended to help illegitimate children have ultimately led to complications and anomalies. Hindus, Muslims, and Christians are the groups most impacted by these contradictions.
The notion of illegitimacy, according to the argument in the paper, discriminates against children born outside of marriage. It implies that the conventional notion of marriage as essential to morality and the structure of society has been undermined by contemporary criticisms by feminist and queer academics. The study stresses that letting go of cultural, institutional, and legal obligations connected to marriage can lead to greater equality and freedom in partnerships. The study makes a case for legal registration and control of non
marital relationships as a way to advance public goals comparable to those of marriage promotion. The report accepts that social prejudice and stigma against children born out of
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wedlock may endure for some time, but that removing legal obstacles can lessen the stigma attached to them. 21
4. Bibliography
Journal Articles:
1. ‘Bridging the gap between the Juvenile Justice Act 2000 and Christian personal law — inheritance rights of adopted and illegitimate children in India’ ; Archana Mishra 2. 110th Law Commission Report (1985)
3. Journal of the Indian Law Institute, January-December 1998, Vol. 40, No. 1/4, HUMAN RIGHTS SPECIAL ISSUE
4. Mansi Bharat Chheda, Inheritance and Succession Rights of Illegitimate Child under Hindu Laws in India, 3 Jus Corpus L.J. 688 (2022)
5. Radhika Yadav, Illegitimacy: An Illegitimate Concept, 3 INDIAN J.L. & PUB (2016). 6. Vanshika Singh Jaiswal, Rights of Children of Void and Voidable Marriages: A Comparison between Hindu and Muslim Personal Laws, 3 Jus Corpus L.J. 1 (2022).
Acts:
1. Code of Criminal Procedure, 1973, Act No. 2 of 1974 (India).
2. Hindu Adoptions and Maintenance Act, 1956, Act No. 78 of 1956 (India). 3. Hindu Minority and Guardianship Act, 1956, Act No. 32 of 1956 (India). 4. Indian Christian Marriage Act, 1872, Act No. 15 of 1872 (India).
5. Hindu Marriages Act, 1955, Act No. 25 of 1955 (India).
6. Indian Divorce Act, 1869, Act No. 4 of 1869 (India).
7. Indian Succession Act, 1925, Act No. 39 of 1925 (India).
Cases:
1. Chacko Daniel v. Daniel Joshua, 1952 KLT 595
2. Jane Anthony v. Siyath, 2008 (4) KLT 1002
3. Levy v. Louisiana 391 U.S. 68 (1968)
4. Rameshwari Devi v State of Bihar & Ors, (2000)
5. Revanasiddappa v Mallikarjun (2011)
21 Mansi Bharat Chheda, Inheritance and Succession Rights of Illegitimate Child under
Hindu Laws in India, 3 Jus Corpus L.J. 688 (2022)
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Submitted by:
Harini Kailasam Gomathinayagam Tamil Nadu National Law University, Trichy
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