A child born out of wedlock is considered as illegitimate child as the relationship of the parents determines the legitimacy of the children. Therefore, an illegitimate child is considered to be nullis filius which basically means having no legal relationship with his or her parents.
The laws for legitimate child and illegitimate child are very biased and different. In fact, under Muslim Personal Law an illegitimate child is not given any property rights through the father.
If the father and mother of the child are not legally married at the time of the child’s birth, the child is considered illegitimate.
Due to the participation of personal rules based on religious communities and the ideals they defend, India places a high value on a child’s validity. Since the validity of a kid is judged by the type of relationship the parents have, a child born out of wedlock is said to be illegitimate. However, the law must adapt to the changes in society as they occur, and it is the judiciary’s job to address these needs as society changes. Even if a kid born outside of wedlock is considered illegitimate, the child is innocent in the matter; still, the child must bear the brunt of society.
Under Hindu Law
Unlike a legitimate son, an illegitimate son has no claim to the family’s ancestral property and is not eligible to join the joint Hindu family as a coparcenary. Additionally, he lacks the right to order a divorce against the family. A share of the father’s estate, possibly one that is equal to the shares given to his other sons, may be given to the son during the father’s lifetime.
An illegitimate son had joint ownership of his father’s estate with the legitimate son prior to the passage of the Hindu Succession Act and had the right to compel a division against the legal son. However, because he is not his father’s genuine kin according to the aforementioned Act, he is not eligible to succeed him.
While the 1976 amendment to Section 16 now enacts a legal fiction treating illegitimate children as legitimate for all practical purposes, including succession to their family properties, the court’s jurisprudence up until this point 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 outside of a live-in relationship are not entitled to inherit the family home. “If a man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate,” the SC had stated in S PS Balasubramanyam vs. Sruttayan. The parents must have shared a home and cohabited for a significant amount of time before society recognises them as husband and wife in order for a child born from a live-in relationship to not be recognised as an illegitimate child. In its ruling in the case of Madan Mohan Singh vs. Rajni Kant from 2010, the court noted that the connection could not be a “walk in and walk out.”
Revanasiddappa v. Mallikarjun, a decision by the Supreme Court from relatively recently, stated that “Child born in illegal relationship/Void marriage is innocent and is entitled to all rights to property that his parents are entitled to,” whether that property is ancestral or self-acquired. When hearing an appeal from Revanasiddappa, a bench of Justices G.S. Singhvi and A.K. Ganguly disagreed with earlier rulings over how to interpret Section 16 (3) of the HMA, which states that “such children are solely entitled to the property of their parents and not of any other relation.” According to the Bench, which emphasised the necessity for a broad interpretation of Section 16(3), “what was illegitimate in the past may be legal today with shifting social norms of legitimacy in any community, including ours. The social consensus that shapes the idea of legitimacy is shaped by a number of different social groups.
Under Muslim Law
Under Muslim Law having sexual intercourse between a man and woman without Nikah(marriage) is considered as zina which is a huge sin in Islam and a child born from zina i.e., without marriage is considered as a ‘child of nobody’.
Legal Status Under Sunni Law
Sunni jurists have ruled that any child a woman has while her marriage is still active must be credited to her husband alone, even if she is confident the child was conceived outside of marriage. The child is to be credited to the mother and not the adulterer if the husband chooses to exercise his right of lian (mutual divorce) and disowns the child. Even if it is certain that the child was fathered by the adulterer and his identity can be determined, the majority of Sunni jurists concur that the child is to be credited to the mother and not the adulterer when an unmarried woman produces a child. Therefore, in both situations, the biological father and his family have no rights to support or inherit from the “illegitimate” child. Sunni law, however, recognises a shared claim to inheritance between the mother and her “illegitimate” kid. The law also recognises a shared claim to inheritance between the mother’s family and the “illegitimate” kid.
In Munir Ahmad v. Muhammad Saddique, the Lahore High Court applied Islamic law principles and came to the conclusion that when legitimacy could be inferred from the surrounding circumstances and the surrounding circumstances had not been refuted by any trustworthy evidence, courts had generally refused to admit illegitimacy.
Situation Regarding Shia Law
Shia law states that even if the biological father can be positively identified, any child born outside of wedlock cannot be attributed to either the mother or the father. As a result, Shia law does not at all recognise the maintenance or inheritance rights of a “illegitimate” child. No inheritance is allowed for a “illegitimate” child, not even from the mother or other maternal relations.
Under Christian Law
There is no definition of an illegitimate child in the Indian Succession Act of 1925, which is a piece of legislation that deals with the property rights of Christians. It is prohibited for children who were adopted or who were born outside of wedlock to inherit the property of their biological or adoptive parents. The court ruled in the case Antony v. V.M. Siyath that in India, by the Succession Act, the term “child” refers exclusively to a legitimate child. As a result, children who are not legitimate are unable to receive property.
Conclusion
The Indian society is still in the process of developing, and it is currently split into two primary groupings of individuals that hold views that are in direct opposition to one another. One of the groups is the one that follows the traditional practises of their religion, which means that having an illicit child is frowned upon, and being an illegitimate child is even worse.
The other group that may be found in society is comprised of individuals who have perspectives that are reasonable and liberal, and who do not consider illegitimacy to be a social disgrace. They place the blame for the illegitimate child’s existence on the irresponsible couple rather than on the child themselves. Laws in society are constantly evolving because of the passage of time and the effects of changing circumstances.
Sources
https://blog.ipleaders.in/rights-illegitimate-children-hindu-law/
https://courtingthelaw.com/2020/12/15/commentary/rights-of-illegitimate-children-in-pakistan-sunni-and-shia-law-perspectives/
https://www.juscorpus.com/rights-of-an-illegitimate-child-under-hindu-and-muslim-personal-law/
http://lexcliq.com/rights-to-property-and-maintances-of-illegitimate-children-in-different-religion/
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