This Article has been written by Mr. D.V.V Tanay Raj, a 2nd year student of Lloyd Law College, Greater Noida, Uttar Pradesh.

A child whose parents were not married at the time of the child’s birth is considered an illegitimate child. Illegitimate children are the same as bastard children.

Illegitimate children have always had a terrible situation. They suffer consequences without any fault of their own. What is the child’s fault is the primary question that emerges in this situation. The mother is the legal owner of an illegitimate child in Hindu law. However, the child is regarded as the child of no one and does not even belong to the mother under Muslim law.

Only the kid’s true mother and father, and only if they conceive the child in a legal marriage, can establish parental rights. The idea that an illegitimate kid is a child of no one is central to Muslim law. In Shia law, parenthood is established only if the kid is born in valid matrimony, meaning that an illegitimate child will not belong to either parent. In Hanafi law, parentage is established in every situation by the mother. The Sunnis or Hanafis adopt the belief that an illegitimate child is the mother’s property for some purposes, such as feeding and nurturing. The Hanafi Law grants the mother certain rights for these purposes.

According to Muslim law, a son can only be considered legitimate if the child was begotten between a man and his wife or a man and the corresponding slave; any other child is considered invalid and is referred to as “Zina,” which is Arabic for a covert relationship. The term “wife” basically refers to marriage, however marriage is not always characterized by a ceremony; as a result, it may not always be evident in a given situation. If there is no direct evidence to support the validity of a marriage, indirect evidence will do. Confirmation of legitimacy in favour of a son is currently one method of indirect proof. This acknowledgement must indicate that the acknowledger intends to accept the child as his legitimate son, not just that the child is his son.

In the case of Sadiq Hussain v. Hashim Ali, the Privy Council ruled that there is no way for a man to claim that another (who has since been proven to be illegitimate) is his son. 

However, in situations where no such proof has been provided, such a claim or acknowledgement constitutes substantial proof that the person in question is, if possible, the legitimate son of the man making the claim.

Once more, the court stated in Habibur Rehman Chowdhury v. Altaf Ali Chowdhury that “there is no process recognised under Muslim law by which an illegitimate child may be conferred a status of legitimacy.” However, it appears that one of the justifications for Muslim law’s acceptance of polygamy and short-term unions is that their children will never be considered illegitimate.

Illegitimate children are not entitled to inherit from their fathers’ property in Muslim law, both in classical law and in many contemporary Islamic jurisdictions. Because she has Zina, the mother of an illegitimate kid can face severe penalties. Thus, the vital role that legitimacy plays in Islamic law greatly affects the lives of parents, particularly mothers, and their children. As a result, an illegitimate kid finds it challenging to inherit property from their father or parents.

An illegitimate child has no claim to inheritance from his presumed father under any school of Muslim law. The mother and her illegitimate offspring both have the ability to inherit property under Hanafi law. The property of every other relative the illegitimate kid is related to through their mother is also passed down to them, in addition to the property owned by their mother.

Consequently, half of the entire estate will be inherited by the husband and the sister’s illegitimate son upon the death of a Hanafi woman, with the remaining portion going to the sister’s son. The illegitimate child cannot inherit from any other relatives through the putative father because they are not allowed to inherit from the father.

An illegitimate kid has a reciprocal claim to inheritance with their mother’s family. They are his heirs by residual as well. Apart from his father and his relatives, his other inheritors include, of course, his spouse and their offspring.

The daughter would receive ½ and the mother would receive 1/6th if an illegitimate person left their father, mother, and daughter; the remaining portion would return to them. The father would not be let in. Illegitimate brothers and uncles are similarly ineligible to inherit. However, a twin brother will inherit as his “uterine brother” (the phrase “uterine brother” comes from the fact that a twin brother is only considered to be the mother’s son and not the father’s).

An illegitimate kid cannot inherit from their mother under Shia law.  Illegitimacy serves as a basis for total exclusion under Shia law, and an illegitimate child is not permitted to inherit from either father.

“Moroccan law appears to impose no burden upon the child’s natural father,” according to Tyabgi. It appears that Muslim law places no obligation on either parent to support an illegitimate child, while Hanafis acknowledge that parents have a duty to raise their children until they turn seven; Shias, on the other hand, do not even acknowledge this requirement.

While the father is not required by Muslim law to provide for his illegitimate child, he is required to do so by Section 125 of the Criminal Procedure Code, 1973, which guarantees that fathers provide for all such unfortunate children, with the exception of married daughters. Even in the event that the mother declines to hand up the illegitimate child to the father, he would still be responsible for a certain amount.

Both Sunni and Shia legal schools acknowledge the father as the guardian, however no Muslim legal school recognizes the woman as a guardian, biological or otherwise, even after the father’s passing. Even in cases where the mother or any other female is entitled to custody of the youngster, the father still has the right of guardianship. A child’s father has the unalienable right to dictate their religion and educational path. The father is the exclusive and ultimate guardian of his minor children for the duration of his life.

An illegitimate child is regarded as “a child of nobody” under Islamic law. Only the father’s minor legitimate offspring are entitled to guardianship.

He has no legal claim to custody or care of his little children who are not his biological children. Even for her illegitimate minor children, the mother is not a natural guardian, although she is still entitled to custody.

Every child has the right to receive love and affection from both of their parents. He or she is entitled to grow up in a calm, caring, and tolerant atmosphere.  However, it appears that the illegitimate children in our nation, under Muslim law, have received justice without any fault of their own. Someone who hasn’t even committed a crime can’t be punished for it. This issue has not received much attention from the Legislature, despite the fact that appropriate legislation is needed to address the legal ambiguities. It would not be incorrect to argue that the fact that the legal reforms have improved the situation of illegitimate offspring by causing confusion and anomalies instead is a true irony. These inconsistencies in the law seem to have affected the Hindus, the Muslims, and the Christians most of all.

One can only imagine the agony that illegitimate daughters have endured throughout the years, suffering not only from their illegitimacy but also—and maybe more importantly—from being members of the sex that is exploited! Thus, it is said that in order to grant them rights such as the right to property and support, among other things, the issue of illegitimacy in India must be resolved right away.

Even if the biological parents of the child marry in the future, if the child is born out of wedlock, or if the matter is raised through ziha, the child cannot be considered legitimised, even if the father chooses to acknowledge it. According to the Hanafi school of law, a mother’s acknowledgment is legitimate but less significant. The husband or his heirs must acknowledge the mother if a kid is acknowledged by way of acknowledging her. One could argue that behaviour implies recognition; a child’s legitimacy can be established without the child having to show recognition.

REFERNCES :

[1]http://legal-dictionary.thefreedictionary.com/Illegitimate+children

[2]http://www.duhaime.org/LegalDictionary/I/IllegitimateChild.aspx

[3] (1916) ILR 38 All 627

[4] (1921) 23 BOMLR 636

[5]http://www.legalservicesindia.com/articles/cmrights.htm

[6]http://www.supremecourtcases.com/index2.php?option=com_content&itemid=5&do_pdf=1&id=22276