Property Rights of Illegitimate Children

Oct 20, 2020

As per the common norm any child born out of wedlock is considered to be an illegitimate child. Society since ages has come to agree that marriage validates relationships and stresses on monogamy between the couple. The property rights of such a child is always a question because not many voluntarily do so, and thus there is a need for legal enforcement of such rights.

In the case of Jinia Keotin & Ors vs Kumar Sitaram Manjhi & Ors, it was held that a child born out of a void marriage shall be considered as illegitimate. The Hindu marriage is considered to be void if the party is committing bigamy, the parties are sapindas of each other, or if they fall within the prohibited degrees of relationship. Post the Marriage Laws Act of 1976, Section 16 of the Act was amended and resulted for consideration of kids born out of void and voidable marriages as legitimate children.

As per the Hindu Law (Hindu Marriage Act and Hindu Adoptions and Maintenance Act, 1956,) the Hindu person is required by law to maintain the illegitimate children till their maturity, and if such person dies his legal heirs are required to maintain the illegitimate children from the estate of the deceased. In the SPS Balasubramanyam vs Sruttayan, the court held that children born out of a cohabited relationship for a long time will not be illegitimate.

Section 16(3) was interpreted by the Supreme Court in the case of Revanasiddappa v. Mallikarjun,The court held that, “Child born in an illegitimate relationship/Void marriage is innocent and is entitled to all rights to property to which his parents are entitled whether ancestral or self-acquired property”. The court also stated that, “with changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. The concept of legitimacy stems from social consensus, in the shaping of which various social groups play a vital role”. This decision paved the way for the property rights of illegitimate children to be synonymous with legitimate children.

Under the Muslim law an illegitimate child cannot claim inheritance from his father. Only in the Hanafi school reciprocal inheritance exists between that of the mother and illegitimate child, this right of the child to inherit extends from other matrilineal relatives also. Under the Shia law, the child is barred to inherit from any of his parents. The Islamic law also does not allow the father to maintain his illegitimate child but in India the Criminal Procedure Code under Section 125 makes it legally binding on the father to maintain such offspring. With respect to guardianship too, an illegitimate child is not a duty of the father to be a guardian of.

The Supreme Court though has taken a positive step and stated in the case of Sukha v Ninni, that “An agreement to maintain an illegitimate child, for which the Mohammedan Law as such makes no provision, will in my opinion not have the effect of defeating the provisions of any law. As a matter of fact, maintenance of illegitimate children has been statutorily recognized under Section 125 of the Criminal Procedure Code of 1973 in our country and it is in consonance with this wholesome policy that the offsprings born under such circumstances are to be provided for and should not be left to the misfortunes of vagrancy and its attendant social consequences."

The right of property of Christians are dealt under the Indian Succession Act of 1925. This particular act only takes into recognition kinship as such the children of parents through adoption or illegitimacy are barred from inheritance of the property under the Act. There exists equality of inheritance shared by the daughters and sons provided such offsprings are born out of a valid wedlock. The definition of child under the Indian Succession Act does not include an illegitimate child. 

The court in the case of Jane Antony v. V.M. Siyath stated that, “The rule under law of succession is that children means legitimate children. So, the statutory provisions and judicial decisions are so clear that under Christian law in India a child does not include illegitimate child and therefore such child is not entitled to a share in the property of the deceased parents.” 

Akin to the Muslim law the illegitimate children belonging to Christian are not required by law to be maintained by the parents. As with respect to the testamentary succession the testator must specifically mention the child to include the illegitimate child otherwise such succession is only towards a legitimate child and not an illegitimate child.

It is pertinent to note that India’s judiciary is more dynamic and tries to meet the needs of the present even when the laws do not. It is a cumbersome process to interfere with the personal laws of Islam and Christianity and Uniform Civil Code is still a distant dream to India. As held in the case of Jane Antony by the Kerala High Court, “all the children both legitimate and illegitimate are entitled to the maintenance under Section 125 of the Code of Criminal Procedure, there is no reason or logic in denying them their right of inheritance to succeed to the properties of their parents in cases of intestacy. It also suggested the Central Government to enact a legislation to confer right of succession on all illegitimate children irrespective of their religion in tune with Section 125 of the Code of Criminal Procedure which is for all purposes a secular legislation.”, there is a need on part of legislation to make sure that illegitimate children should not always have to beg for their rights, they must be given it as through the virtue of their birth. 

The illegitimate children are a ridicule for the narrow-minded society, at least their rights need to be protected by the society. As it is rightly said that, “There are no illegitimate children, only illegitimate parents” by Leon R. Yankwich, the state must impose compulsory duty on the parents and the children or the poor parent mustn’t always have to knock the doors of the court.