The Latin root of the word “illegitimacy” means “not in conformity with the law.” Since the relationship between the parents determines the children’s legality, a child born out of wedlock is regarded as an illegitimate child. As a result, an illegitimate kid is referred to as being “nullis filius,” which simply implies that they have no legal connection to their parents. An illegitimate kid is deemed to lack legitimacy because there is no legal connection, depriving him or her of the claim to the property of his or her parents. Illegitimate children are not recognized by the state; hence their legal status is governed by the parents’ individual personal laws. The personal laws of the parents are taken into consideration while deciding the right to property of the child.
ILLEGITIMATE CHILDREN:
According to the law, a kid whose parents are not wed is considered to be illegitimate. A kid conceived following a legally binding union is regarded as legitimate. A kid shall be deemed to be illegitimate in Hindu law if any of the following apply:
- Children born out of void marriages.
- Children born out of annulled or voidable marriages.
- Children born out of illicit relationships.
- Children born through concubines.
- Children born out of a marriage which is not valid for want of proper ceremonies.
THE RIGHTS OF ILLEGITIMATE CHILDREN UNDER HINDU LAW:
According to Hindu law, the legality of a marriage under the Hindu Marriage Act determines the legitimacy of a kid. A person who is Sikh, Jain, or Buddhist by faith is subject to the Hindu Marriage Act. As a result, the illegitimacy standards followed by the aforementioned three religions will be comparable to those followed by Hindu law. According to a rigorous interpretation of the sacred Hindu texts, a child must have been conceived after marriage in order to be recognized as legitimate. According to a ruling by the Privy Council, the Hindu law—which is a binding law—only recognizes birth during matrimony as a necessary condition of legitimacy. Under the ordinary or any other personal law, a child for being treated as legitimate must be born in lawful wedlock.
VALID MARRIAGE UNDER HINDU MARRIAGE ACT, 1955:
Under the Hindu Marriage Act, marriage is void under following circumstances:
- If the marriage is a bigamous marriage.
- If the persons who are married are Sapindas of each other.
- If the persons who are married are within prohibited degrees of relationship.
Such marriages will be regarded as void, which will have the consequence of proving their nonexistence. If all of the requirements in Sections 5 and 7 are met, a marriage is declared lawful, and any children born to that marriage are regarded as legitimate. The following circumstances will allow one partner to choose to nullify the marriage:
- When the other party was not of sound mind at the time of marriage;
- When the other party was impotent at the time of marriage;
- When the wife was pregnant at the time of marriage by some other person, not the husband (without the latter’s knowledge); and
- (If) When the consent of the other party (or the guardian’s consent in regard to a minor bride) was obtained by force, coercion, threat or fraud.
The Hindu Marriage Act originally stated that a child born out of a marriage that had been declared void or annulled by the court would have the same status as a child born out of a marriage that had been dissolved by a divorce decree. However, Section 16 of the Hindu Marriage Act has been interpreted differently by the Honorable Courts. In order for the clause to be applicable, an honourable court must issue a nullity decree; otherwise, the children of void marriages would continue to be considered illegitimate. This loophole was closed with the Marriage Laws (Amendment) Act of 1976, which modified Section 16 of the Act. All children of voidable and null marriages are now regarded as legitimate. The children of invalid or voidable marriages, however, are not entitled to inherit their relatives’ property.
The child will not be regarded as illegitimate if born out of a second marriage if the mother’s first marriage has not been legally dissolved. The requirement under Section 12 of the Act of 1955 is that one of the parties petition the court to declare the marriage null and void is eliminated in the Declaration of Validity of Marriage.
INHERITANCE UNDER HINDU LAW:
Illegitimate children are not eligible to inherit from their fathers. However, illegitimate children are considered to be related by illegitimate kinship to their mothers and to one another under the Hindu Succession Act, and their legitimate descendants are considered to be related by legitimate kinship to them and to one another under the same Act, and can therefore inherit from one another. An illegitimate child has the right to inherit from both their mother and their unrelated siblings (uterine blood). The possessions of an illegitimate child’s mother are also transferable. The father has no claim to his illegitimate child’s possessions.
JOINT FAMILY PROPERTY AND PARTITION UNDER HINDU LAW:
An illegitimate son, unlike a legitimate son, is not eligible to join his father’s joint Hindu family or to get any interest in the family’s ancestral property. 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 Supreme Court 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 recognizes them as husband and wife in order for a child born from a live-in relationship to not be recognized 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 just a few months ago, however, stated that “Children born in illegitimate relationships/void marriages are innocent and are entitled to all rights to property to which his parents are entitled whether ancestral or self-acquired property.” In interpreting Section 16 (3) of the HMA, which states that “such children are only entitled to the property of their parents and not of any other relation,” a Bench of Justices G.S. Singhvi and A.K. Ganguly deviated from earlier decisions when hearing an appeal by Revanasiddappa. The Bench emphasized the need for a liberal interpretation of Section 16(3) by stating that due to shifting social norms of legitimacy in all societies, including our own, what was once considered illegal may now be accepted. The social consensus that shapes the idea of legitimacy is shaped by a number of different social groups.
The Bench cited an earlier ruling when it stated: “The HMA intends to bring about social reforms, and Section 16’s obvious purpose is to grant innocent children the social status of legitimacy.” This is a statute to achieve the socially desirable objective of removing the stigma of illegitimacy on such youngsters who are as innocent as any other children.” Since there was no restriction imposed in Section 16 (3), such children would have a claim to whatever “becomes the property of their parents whether self-acquired or ancestral,” the Bench said.
GUARDIANSHIP UNDER HINDU LAW:
According to the Hindu Minority and Guardianship Act of 1956, a mother has a preference for guardianship. In the case of an illegitimate child, the mother is regarded as the natural guardian, followed by the father, and in the case of a married female, the husband. According to a recent decision by the Supreme Court, an unmarried single mother in India may act as the child’s sole guardian.
The Hindu Marriage Act, 1955’s Section 16 (3) covers the rights of illegitimate offspring to inherit property. Illegitimate offspring are “only entitled to the property of their parents and not of any other relation,” according to Section 16 (3). The law also applies to Sikhs, Jains, and Buddhists in addition to Hindus.
This was understood to mean that, rather than inheriting property from their ancestors, illegitimate offspring had the right to their parents’ self-acquired property.
However, the Supreme Court (SC) has ruled that, in accordance with the Hindu Marriage Act, illegitimate children have a title to their parents’ self-acquired and ancestral properties. “The parents’ relationship may not be legal, but the birth of a child in such a relationship must be evaluated separately from the parents’ relationship. An innocent child born in such a connection is entitled to all the same rights as other children born in legally binding marriages. When ruling in the 2011 case of Revansiddappa & Ors v. Mallikarjuna & Ors, a bench of Justices GS Singhvi and AK Ganguly stated, “This is the essence of Section 16 (3).” “If they were deemed legitimate, they could not be treated differently from other legitimate offspring, and they would have the same rights to all of their parents’ property, both newly acquired and inherited… We find it intriguing that the legislature used the term “property” without qualification and without distinguishing it from either self-acquired or inherited property. It has been kept broad and inclusive,” it continued. However, the SC decided that children born outside of marriage would only be entitled to a portion of their parents’ assets and could not independently claim joint family property.
THE RIGHTS OF ILLEGITIMATE CHILDREN UNDER MUSLIM LAW:
Only the true father and mother of a child are recognised as its parents, and only if they were legally wed when the child was conceived. The idea that an illegitimate kid is a child of no one is central to Muslim law. In Hanafi law, the woman determines paternity in every instance, whereas in Shiite law, parentage is only determined if the kid is born into a legal union. As a result, an illegitimate child will not belong to either of the parents. They (the Sunnis or the Hanafis) hold the belief that an illegitimate kid belongs to the mother for some things, like feeding and nourishing them. The Hanafi Law grants the mother considerable rights in this regard.
Any other offspring is classified as “Zina,” which signifies a clandestine relationship, and is therefore not legitimate under Muslim law. A son is only considered legitimate if the offspring is begotten between a man and his wife or a man and his respective slave. The word “wife” is essentially a synonym for marriage, but since marriage can take place without a formal ceremony, it is possible to debate whether or not marriage actually exists in a given situation. If there is no direct evidence to support a marriage’s validity, indirect evidence will do. Now, the recognition of legitimacy in favor of a son is one of the methods for indirect proof. This acknowledgement must be expressed in a way that demonstrates the acknowledger’s intention to recognize the child as his legal son, not only that the child is his son.
No statement made by one man that another (proven to be illegitimate) as his son can make the other legitimate, but where no proof of that kind has been given, such a statement or acknowledgement is substantive evidence that the person so acknowledged is the legitimate son of the person who makes the statement, provided his legitimacy is possible. This is according to the Privy Council in Sadiq Hussain v. Hashim Ali.
“The Court has said that there is no mechanism recognized under Muslim law by which a status of legitimacy may be conferred on an illegitimate child,” according to Habibur Rehman Chowdhury v. Altaf Ali Chowdhury. However, it appears that one of the justifications for Muslim law’s acceptance of polygamy and short-term unions is that under no circumstances shall the kid born to them be considered to be an illegitimate child.
RIGHT TO PROPERTY OF ILLEGITIMATE CHILD UNDER MUSLIM LAW:
The classical law of Islam and several contemporary Islamic jurisdictions, prohibit the illegitimate child from inheriting the father’s property. Having Zina might result in the mother of an illegitimate child receiving severe punishments. Therefore, the vital role of legitimacy in Islamic law has a significant impact on children’s lives as well as the lives of their parents, particularly mothers. As a result, an illegitimate kid finds it challenging to make a claim against his or her parent(s).
An illegitimate kid has no inheritance rights in the property of his presumed father according to any school of Islamic law. The mother and her illegitimate offspring each have an equal right to inherit property under Hanafi law. The property of all other relatives to whom the illegitimate child is related through their mother is also inherited by him or her, in addition to the mother’s assets. Therefore, if a Hanafi woman dies leaving behind both her husband and her sister’s son, the husband will receive half of the estate, and the remaining portion will go to the sister’s son. The illegitimate kid is not only unable to inherit from the father, but also from any relatives who are connected to the putative father.
There is a reciprocal right of inheritance between a mother’s maternal connections and an illegitimate child. They are also his heirs to his residue. With the exception of his father and his kin, his spouse and children are, of course, his other inheritors. Therefore, if an illegitimate person leaves behind a mother, a daughter, and a father, the daughter would receive a half share and the mother a sixth share, with the remaining assets reverting to them. Father would be left out. Similar to an uncle, an illegitimate sibling is also ineligible to inherit. But a twin brother will also receive an inheritance from his uterus (the twin brother is regarded as the son of only the mother and not that of the father, hence the term- uterine brother).
Illegitimate children are not allowed to inherit under Shia law, not even from their mothers. Illegitimacy serves as the criterion for total exclusion in Shia law, and the illegitimate child is not permitted to inherit from either father.
RIGHT TO MAINTENANCE OF ILLEGITIMATE CHILD UNDER MUSLIM LAW:
The natural father of the kid appears to be under no obligations under Muslim law, according to Tyabgi. Although the Hanafis recognize the responsibility to nurture a kid to the age of seven, the Shias do not even recognize this obligation; it appears that Muslim rules do not put any form of obligation of maintenance of illegitimate children on either parent.
While Section 125 of the Criminal Procedure Code, 1973 (which assures that all such unfortunate children are maintained by their fathers except a married daughter) forces the father to pay for the maintenance of the child, Muslim law does not require the father to support his illegitimate child. Even if the mother refuses to hand up the illegitimate kid to the father, he would still be required to pay a set amount.
GUARDIANSHIP UNDER MUSLIM LAW:
The mother is not recognized as a guardian, natural or otherwise, in any Muslim school of law, even after the father’s passing. The father is regarded as guardian in both Sunni and Shia schools. Even if the mother or another female is entitled to custody of the kid, the father still has the right of guardianship. The father has complete authority over the religion and education of his underage children. The father is the exclusive and supreme protector of his minor children for as long as he is alive.
An unmarried child is referred to as “a child of nobody” in Muslim law. Only the father’s minor, legitimate offspring are eligible for guardianship. He has no right to custody or guardianship of his minor, illegitimate children. Even though she is entitled to custody of her illegitimate young children, the mother is not their natural guardian.
CONCLUSION:
Every child has the right to receive love and affection from both its parents. He or she has a right to upbringing in a relaxed, caring, and welcoming atmosphere. However, justice appears to have prevailed for no fault of their own among the illegitimate children in our nation under Muslim Law. An individual cannot be punished for a crime that they haven’t even committed. The lack of legislative involvement in this matter calls for prompt attention and appropriate legislation to address the legal irregularities. It would not be incorrect to state that it is genuinely ironic that the improvements brought about by legislation have actually worsened the situation of illegitimate offspring by causing anomalies and uncertainty. The Hindus, Muslims, and Christians appear to have been most impacted by these legal inconsistencies.
The plight of illegitimate daughters over the years has been left to the imagination, as they suffer not only from their illegitimacy but also, and more importantly, from the fact that they are members of the sex that is exploited! Thus, it is argued, action must be taken right away to address the issue of illegitimacy in India so that individuals might be granted rights such as the right to property and maintenance, among others.
SOURCES:
- The Hindu Marriage Act, 1955
- The Hindu Adoptions and Maintenance Act, 1956
- https://blog.ipleaders.in
- https://housing.com
- https://ijirt.org
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