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Provisions in Family Laws – Illegitimate Children

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INTRODUCTION

No one of illegitimate birth shall enter the assembly of the LORD; none of his descendants, even to the tenth generation, shall enter the assembly of the LORD”[1]

With the changing time there is a growing concern and awareness for the rights and welfare of the children born out of a wedlock or in a live-in-relationship or illegitimately. This concern can be seen at the national as well as the international level with countries having taken into regard the rights of the children born out of such kind of relationship or marriage into their national policies and in their constitution and even under the international covenants.

Traditionally, under common law for instance, it was a very important legal consideration for a child to be legitimate in cases of inheritance rights.  Children born out of a wedlock more or less had no regard or esteem in the society. These children could have been without any worry about the legal consequence be disinherited by their fathers. An illegitimate children’s father owed no obligation towards him, he neither had to support him nor provide maintenance. The father’s property couldn’t even be inherited by the illegitimate child until and unless the father chooses to pass the property voluntarily by a will.[2]

While there have been a significant change in the attitude of the recent governments towards the rights of an illegitimate child. With allowing him/her to claim maintenance from their father to inherit the ancestral property there seems to be an outward wind of change as to how the various jurisprudential system looks at the status of the illegitimate children.  Thus in this paper, the author will be looking as to what is the status of an Illegitimate Children under various personal laws regarding succession Then the author will do a comparison between the various personal laws and how different are they regarding the rights and status of an illegitimate child. In the final chapter the researcher will analyze some cases and will also look into the contemporary issue of a child born in a case of a live-in relationship.

Rights of an Illegitimate child under Various succession laws

In this chapter the researcher will look into what are the rights and status conferred to illegitimate children under various personal laws.

Hindu law

The law debars the illegitimate child to succeed other relatives property as they can only succeed their parents property.

Illegitimate relationship is not recognized by the Succession Act of 1926. The act recognizes relationship which is lawful, i.e. out of lawful wedlock. This has been further reiterated under Section 3 (j)[3] of the Hindu Succession  Act, where in related means related by legitimate kinship. It is explicitly confined to legitimate kinship. Under this act the illegitimate sons or daughters are not to be considered as sons and daughter and are even debarred from the line of succession except to the extent as allowed in the proviso[4] of this section.[5] According to the proviso the illegitimate children shall be considered to be related to their mother, and to one another, and even to their descendants who are only legitimate descendants.

However, the illegitimate child can succeed to the property of his/her mother under section 14[6] by virtue of this proviso as stated above. While it is interesting to note that under the old Hindu law, A Sudra who has continuously kept a concubine and has an illegitimate son with her than the illegitimate son will be entitled to succeed to the property of his supposed (putative) father be it be a separate or ancestral property to a limited extent.[7] If at the time of succession of a property by an illegitimate son of a Sudra, the Act had come into force then it wouldn’t be governed by the old Hindu Law, rather it will be governed only by the provisions of the Hindu Succession Act, 1956.[8] The illegitimate son of a Sudra then wouldn’t be entitled to succeed to the property of his putative father in case of an intestate succession if the question of succession arises after the Hindu Succession Act, 1956 has come into force.[9]

The illegitimate children cannot invoke general rules of succession as stated under section 8[10] with regard to a male Hindu dying intestate as it is not possible in view of the provisions of sections 3(1)(j), 4, 8 and 15 to correspond illegitimate children to daughter, son or son of a pre-deceased son etc., as mentioned in Class I heirs. A claim by an illegitimate son for a succession certificate as a legal heir of heir of his pre-deceased father was refused because the illegitimate children are not included in the list of Class I heirs[11] of the father.[12]

Thus an illegitimate son of a Sudra cannot claim for partition during the lifetime of the father.[13] Various courts have expressed their dissatisfaction with the Hindu Succession Act for not providing clear relief to an illegitimate son of a Sudra who before the enactment of the Hindu Succession Act, 1956 enjoyed much more benefits. The best example of judiciary showing dissatisfaction with the act was in the case of Daddo[14], wherein the court observed that it is unfortunate for the illegitimate sons of a Sudra whose intestate succession rights were extinguished by the Hindu Succession Act, 1956, who earlier enjoyed this right without any bother over the centuries. However the court respected the parliament by saying that it is up to the Parliament to review this law as it takes away the rights of an illegitimate son of a Sudra which he earlier enjoyed.

Muslim Law

In Muslim law, legitimacy is important as it determines a child’s entitlement to maintenance from his father plus inheritance from his father. Along with that it is also important because it allows the father to exercise his right of custody, guardianship, inheritance etc. The determination of legitimacy plays an important role when it is recollected that the concept of adoption and legitimation is relatively unknown in Muslim law.[15]

It is quite ironic in Muslim law where the rules relating to legitimacy are quite fairly liberal but while on the other hand illegitimacy is altogether condemned.[16] An illegitimate son is not ‘acknowledged’[17] as legitimate, because there is no such thing as legitimation in Islam.[18] the child’s maternity is traced through the woman who gave birth to him/her, regardless of the woman’s marital status or whether the child is born out of an illicit intercourse (zila). Paternity, on the other hand is a legal relationship between the father and the child, if the wedlock is lawful and the child is born out of such wedlock. The status of a child wouldn’t be affected in case of a sahih (valid) or fasid (irregular) marriage as much as it would in case of a batil (void), or if zina has been committed, then no father-child relationship comes into existence.

Christian Law

The rules regarding the right of an illegitimate child to the right to property relating to property of his/her father who is a Christian are included in the Indian Succession Act, 1925.[19] The Christian law only acknowledges those who are related by blood for ascertaining who are entitled to succeed to the property as it is guided by the rule of kinship. Thus it does not protect the rights of an illegitimate child and those who children who are adopted to inherit the property.

It is interesting to note that the word child is used sans condition[20] under the Indian Succession Act, 1925. The children who are not born out a wedlock recognized legally are not capable to succeed to a property of the deceased as the act only considers relationships that are related by blood through lawful wedlock.[21] In matters of testamentary succession the Act specifically discriminates against illegitimate children as it says that when the aim or forethought of the testator is unknown in the will to give the property to the illegitimate child, then the term child will be interpreted as legitimate child and illegitimate child wouldn’t get the property.[22] In case of a void marriage, then under the Indian Succession Act the children born out of such marriage are not capable of inheriting any property as they are considered as illegitimate.[23]

Not all Illegitimate children are excluded from inheriting their parents estate even though they might be born out of void marriages of every kind. The only time the child will be debarred from inheriting his/her parents property will be if he/she is born out of prohibited degree of relationships or if one of the parents were impotent. There seems to be confusion as it is difficult to understand why children born to parents who were within prohibited degrees of marriage and where the father was an impotent don’t get any succession rights while the children are conferred legitimacy partially when they are born from the second marriage or when one of their parent is inane, they still get succession  rights in the latter instances while they are excluded from the realm of succession in the former instances. The children born in the latter instances get the succession rights to properties of the parents but in the case of insane parent they only get the rights if he was competent to form a contract at the time of his marriage

Legitimacy of children: Live-in Relationships

Live-in relationships are those relationships which involve a male and a female sharing a cohabitation and without any subject to marital nuptials or any other requirement as considered in the marriage. Controversy has always revolved around this kind of relationship. Children born out of such relationships have been termed as ‘bastards’ or ‘illegitimate’ with many rights snatched away from them which would have been granted to them had they been born out of a legitimate wedlock as considered by the society. Such children always attract a kind of social stigma with which people view them for the reasons unknown.

However there seems to be a changing view regarding the live-in relationship is quite evident from the judgments pronounced by the courts in which they have recognized live-in relationship.[24] While recognizing such marriage the question raised was whether the children born out of such marriage can inherit the father’s property and if yes, then whether they can inherit the ancestral or his separate property or both? Section 16[25] of the Hindu  Marriage Act talks about legitimacy of children born out of void and voidable marriages. It is often argued that this section confers legitimacy status to the children of the couples who decide not to marry rather live-in as a couple. Section 112[26] of the Indian Evidence Act, says that the if the child is to be proved legitimate then he/she must be born during the period of his father and mother being validly or legally married i.e. the child must be born at the time when his parents were lawfully wedded and not before the marriage or after the divorce. This section fails to recognize children born out of live-in relationships.[27]

Since there being no law as such which recognizes the status of the live-in relationship couples, the law relating to the status of children born out of such relationship is also not very clear. It becomes very important in the today’s rights-based world to ascertain the status of such children where every legislation’s primary agenda is to ascertain the protection of child rights.

Thus with respect to the status of children born out of such relationships, the precedents help in tackling this socio-legal problem and it is not only the precedents that have helped but also our own The Constitution of India in Art 39(f)[28] talks about the responsibility of the state to safeguard the interests of the children and provide them with opportunities so as to help them develop in a healthy manner. The author will discuss few impacting case studies later on in this paper.

Comparison between the Hindu, Muslim and Christian Law

There seems to be wide and contrasting difference between the various personal laws and how they look at the succession rights of an illegitimate child.

The Hindu law provides for an illegitimate child to claim maintenance from either of his parents but the claim for the right to succeed to the property of his parents only from his mother and not from his father. Recently there have been a few cases wherein there has been a shift from the old saying and now the courts allow an illegitimate child to succeed even from the property of his father and that too self-acquired. But the contention still remains whether can an illegitimate child claim succession rights to the ancestral property. Though the court in Revanasidappa[29] has decided in affirmative, but yet they referred the question to a larger bench as the law previously laid which granted the illegitimate child only the right to succeed to the self-acquired property and not ancestral was in place as it was ruled by a larger bench than this one.

While there seems to be a quite fair liberal view the other two personal laws in India (Muslim law and Christian law) don’t even recognize illegitimacy, the question of succession rights is too far fetched! The Hanafi law in the Muslim law creates an exception wherein the illegitimate child is allowed to claim maintenance from his/her mother but not otherwise. While the Christian law doesn’t even recognizes illegitimacy, though there are some instance where partial legitimacy is recognized. Thus one can figure it out that the illegitimate child doesn’t have rights of inheritance or succession.

 CASE STUDY

Revanasiddappa v. Mallikarjun[30]

The question raised before the Supreme Court in this case is whether an illegitimate child under Section 16(3)[31] of the Hindu Marriage Act is entitled to inherit the ancestral property of his parents or whether his share is only restricted to the self-acquired property of his parents?

While examining this issue the court looked into its own precedents and came out with a different view. Section 16(3) talks about the rights of children born out of voidable and void marriages, it says that they can assert rights to the property of their parents. The court also observed that the word property used in this section is not qualified with anything that would suggest that the legislature intended to keep the meaning of the property general and broad in this section, and not specifically an ancestral or self-acquired property.

Then the judges discussed at length what was the stance taken by the courts earlier from various cases. It was clear that prior to the enactment of the Hindu Marriage Act, an illegitimate son of a Sudra could inherit his father’s property but now he is debarred. The court disapproved of the interpretation given to the section 16(3) in the cases of Jinia Keotin[32], Neelamma[33] and Bharath Matha.[34]

Their reason being that the legislature is silent about which property is an illegitimate child eligible to succeed, whether a self-acquired or ancestral one. The court says that the illegitimate child can only inherit the property of his parents and not of others. The court further delves upon the issue and says that while interpreting section 16(3) the courts must read it with article 39(f).[35]

The court further says that while construing the concepts of property rights Art 300A also comes into play. It talks about that a person shall not be deprived of his property save by authority of law. Though it is a constitutional right and not a fundamental right but it still gives right to person to not be deprived of his property.

In the present case, it Section 16(3) has no qualification before the word property thus it may mean a self acquired property or an ancestral but for the purpose of the inheritance right of an illegitimate child, he/she can inherit only the property of their parents and not of other relatives.

While concluding the court expressed their constraints as to not passing a judgment but rather they referred this matter to a larger bench as the previous law was laid down by a bench higher in number than this.

Pavitri v. Katheesumma Vaidiaalingam[36]

In the present case the question before the court was whether an illegitimate child has a right to inherit the property and claim maintenance from her putative father.

The child was born to a Muslim father and a Hindu Mother. On deciding the question of whether the child is entitled to inherit the property of her putative father and whether is she entitled to claim maintenance, the court held that the illegitimate child is not entitled to maintenance as Mohammedan law imposes no burden upon the putative father to maintain the illegitimate child. The illegitimate child in only entitled to be maintained by his/her mother under the Hanafi law otherwise even under the Shia law the illegitimate child cannot claim maintenance. The court held the same for the right to inherit or succeed to a property of the parents that the illegitimate child is only entitled to inherit the property of her mother that too under Hanafi law.

However under the Shia law the child of an imprecated mother inherits the property from his mother. Thus it seems that the Muslim law doesn’t accept the concept of illegitimacy and for an illegitimate child, there exists no father, the child claims maintenance if any under the Hanafi law from his/her mother and there exists a corresponding right of inheritance between the illegitimate child and his/her maternal relations.

Sara Erza[37]

In this case the main question was whether the child used in the Indian Succession Act includes an illegitimate child or not? The contention of the party was it does include an illegitimate child under section 37[38].  It was submitted by the appellants that the usage of illegitimate child in section 8[39] was an indication that it was supposed to be used in section 37 and thus it was used without any qualification.

The contention was rejected and the court said that the word child though not qualified with anything but it doesn’t mean an illegitimate child can inherit. The court further looked into a previous case where the interpretation of the word child was a legitimate child and not an illegitimate one. They said had the legislature wanted a different interpretation they would have done it after the previous case was decided but they chose not to thus it means the word child here doesn’t mean an illegitimate, so thus he has no right to succeed to his parents property.

CONCLUSION

The rights and status of an illegitimate child has always been in contention and no personal law wants to address it. Though there has been quite a few reforms in the Hindu personal law but there seems to be yet an old age thinking for the draft-makers when it comes to other personal laws namely the Muslim and the Christian law.

Thus the author after analyzing few cases and researching into what are the status and how were the illegitimate child treated previously comes to a conclusion that the present position regarding them is not quite satisfactory. Though the Hindu law is reforming the other two personal laws are still lagging behind in granting the legitimacy status to the illegitimate children. While Hindu law though reforming is not at all perfect. The position of an illegitimate child born to a Sudra was much better when compared to the current personal law.

While every law has its merits and demerits, the Muslim law seems to be quite old-fashion. It hasn’t changed itself according to the time. The Hindu law on the other hand has started recognizing the right of an illegitimate child born in case of a live-in relationship.

The author finally concludes by saying that the position of an illegitimate child with respect to succession rights has improved in some cases while for an illegitimate child of a Sudra it hasn’t but overall there seems to be a drastic change from the previous century.

 

[1] Deuteronomy 23:2, available at http://biblehub.com/deuteronomy/23-2.htm (Last visited on 27th November, 2015).

[2]How Do Inheritance Rights Vary Between Legitimate and Illegitimate Children?, available at http://www.hg.org/article.asp?id=35490 (Last visited on 28th November, 2015).

[3] Sec 3(i), The Hindu Succession Act, 1956.

[4] Daddo v. Ragunath, AIR 1979 Bom. 176 (Bombay High Court).

[5] Sec 3(i), The Hindu Succession Act, 1956.

[6] Sec. 14, The Hindu Succession Act, 1956

[7] Mayne’s Treatise on Hindu Law & Usage, 1289 (Dr. Vijendra Kumar ed., 17th edn, 2014).

[8] Id.

[9] Id.

[10] Sec. 8, The Hindu Succession Act, 1956.

[11] Sec. 8, The Hindu Succession Act, 1956.

[12] Ramkali v. Mahila Shyamwati, AIR 2000 MP 288 (Madhya Pradesh High Court).b

[13] Suryaprakhasha Rao v. Venkateshwara Rao, AIR 1992 AP 234 (Andhra Pradesh High Court).

[14] Daddo v. Ragunath, AIR 1979 Bom 176 (Bombay High Court).

[15] K. Hodkinson, muslim family law: a sourcebook 307 (1984).

[16] Paras Diwan, family law 279 (2003).

[17] Acknowledged as in acknowledgement of paternity, which in this context means acknowledgement of paternity of a child takes place when it is proved that the child born is not of zina(illicit intercourse).

[18] Diwan, supra note 16, at 193.

[19] Jay Parikh, Right to Property and Maintenance of a Muslim and Christian Illegitimate Children, available at http://www.legalservicesindia.com/articles/cmrights.htm (Last visited on December 1, 2015).

[20] Sec. 24, The Indian Succession Act, 1925.

[21] Re Sarah Ezra v. Unknown AIR 1931 Cal 560

[22] Sec.100, The Indian Succession Act, 1925

[23] E.D. Devadasan, CHRISTIAN LAW IN INDIA 56 (1974).

[24] S. Khushboo v. Kanniammal & Anr., AIR 2010 SC 3196.

[25] Sec. 16, the Hindu Marriage Act, 1956.

[26] Sec. 112, the Indian Evidence Act, 1872.

[27] Enakshi Jha, Status of Children Born in Live-in Relationships (January 15, 2014), available at http://www.legalservicesindia.com/article/article/status-of-children-born-in-live-in-relationships-1622-1.html (Last visited on December 1, 2015).

[28] Art. 39(f), The Constitution of India, 1950.

[29] Revanasiddappa and Anr. v. Mallikarjun and Anr., AIR 2011 SC 2447 (Supreme Court of India

[30] Revanasiddappa and Anr. v. Mallikarjun and Anr., AIR 2011 SC 2447 (Supreme Court of India).

[31] Sec. 16(3), The Hindu Marriage Act, 1955.

[32] Jinia Keotin, (2003) 1 SCC 730 (Supreme Court of India).

[33] Neelamma & Ors. v. Sarojamma & Ors., (2006) 9 SCC 612 (Supreme Court of India).

[34] Bharat Matha & Anr. v. R. Vijaya Renganathan & Ors., AIR 2010 SC 2685 (Supreme Court of India).

[35] Art. 39(f), The Constitution of India, 1950.

[36] Pavitri v. Katheesumma Vaidiaalingam, AIR 1959 Ker. 319 (Kerala High Court).

[37]  Re: Sarah Ezra v. Unknown AIR 1931 Cal 560

[38] Sec. 37, The Indian Succession Act, 1925.

[39] Sec. 8, The Indian Succession Act, 1925.

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