ICFAI UNIVERSITY, DEHRADUN

PROPRETY RIGHTS OF ILLEGITIMATE CHILD

Submitted to – Submitted by –

Mrs. Samradhi Singh Kartikay Singh

Faculty(ILS) 17FLICDDNO1059

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 ACKNOWLEDGEMENT
I would like to extend my sincere thanks to Samradhi Singh for having been my supervisor
and having given for excellent guidance throughout this work and this work would not have
been successfully completed without her supervision.

Dated: - 23rd November, 2018 Kartikay Singh

BBA.LLB (H)

IInd Year

Family Law – I

17FLICDDNO1059

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 TABLE OF CONTENT
Table of Cases…………………………………………………………………..4

1. Introduction…………………………………………………………………5
2. Illegitimacy As A Concept……………………………………………….....6
2.1. Illegitimacy Under Hindu Law
2.2. Rights of an Illegitimate Child in the Past
2.2.1. Maintenance
2.2.2. Inheritance
2.2.3. Joint Family Property & Partition
2.2.4. Guardianship
2.3. Rights of an Illegitimate Child in the Present Scenario
2.3.1. Maintenance
2.3.2. Inheritance
2.3.3. Joint Family Property & Partition
2.3.4. Guardianship

3. Judiciary on Illegitimacy…………………………………………………11
4. Conclusion…………………………………………………………………13

Bibliography…………………………………………………………………..14

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 TABLE OF CASES
1. Jinia Keotin v. Kumar Sitaram Manjhi
2. Shanta Ram v. Smt. Dargubai
3. Thrumurthi Ranayammal v. Thrumurthi Muthamal
4. Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh &
Anr.,
5. Ramasami Pandiya Naicker v. T.B.K. Visvanathaswami Naicker (deceased)
& Ors.,
6. Revanasiddappa v. Mallikarjun
7.

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 Chapter 1
INTRODUCTION
“There are no illegitimate children – only illegitimate parents.”

– Leon R. Yankwich

Under all societies in the world, the status of a child i.e. whether it is born
legitimate or illegitimate has great consequence. Both in the contemporary society
and in the historical society there is classification of children as legitimate and
illegitimate.

Since time immemorial, there is a social stigma surrounding a child who is not
born to legally wedded/married parents. The illegitimate children never enjoyed
equal status along with the legitimate children. The society always discriminated
the illegitimate children in many ways. Not only the society discriminated them,
even law has discriminated them. Law has not given the illegitimate children the
same legal rights as the legitimate ones are given. Under almost all the personal
laws the right to inheritance of the legitimate children and the illegitimate children
are not the similar. Illegitimacy carried a strong social stigma among all religions
practised in the world.[i]

Illegitimacy as defined by the Oxford Dictionary means, “(Of a child) born of

parents not lawfully married to each other”. This means illegitimacy means when
the parents of a child are not lawfully wedded, the child will be considered
illegitimate.
Premarital sexual relationship and extramarital sexual relationship are considered
to be a sin in almost all the societies. So the resultant child of such offensive
relationship is also kept in a state of sin. It is considered illegitimate.
Many religions also view premarital or extramarital sexual relationship as an
offensive relationship. Almost all the personal laws in India are religion-based and
so even under law, the children born out of such offensive relationship are not
given equal status with the children born out of a lawful wedlock.

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 Chapter 2
ILLEGITIMACY AS A CONCEPT
In medieval Wales, a “bastard” was defined simply as a child not acknowledged
by its father. All children, whether born in or out of wedlock, which were
acknowledged by the father, enjoyed the same legal rights, including the right to
share in the father’s estate. After England’s conquest of Wales, English law came
to apply in Wales.

Under English law, a bastard was unable to be an heir to real property, in contrast
to the situation under civil law, and could not be legitimized by the subsequent
marriage of father to his mother. There was one exception: when his father
subsequently married his mother, and an older illegitimate son (a “bastard eignè”)
took possession of his father’s lands after his death, he would pass the land on to
his own heirs on his death, as if his possession of the land had been retroactively
converted into true ownership. A younger non-bastard brother (a “mulier puisnè”)
would have no claim to the land.

The Legitimacy Act 1926 of England and Wales legitimized the birth of a child if
the parents subsequently married each other, provided that they had not been
married to someone else in the meantime. The Legitimacy Act 1959 extended the
legitimization even if the parents had married others in the meantime and to
putative marriages which the parents incorrectly believed were valid. Neither the
1926 nor 1959 Acts changed the laws of Succession to the British throne. The
Family Law Reform Act 1969 (c. 46) allowed a bastard to inherit on the intestacy
of his parents. In canon and in civil law, the offspring of putative marriages have
also been considered legitimate.

The courts in India decide1 a child to be legitimate or illegitimate depending on

the following criteria:

A child born within lawful wedlock is a legitimate child

At the time of the birth of the child, if the father and mother of the child are
legally married to each other, the child is a legitimate child. A child born outside
the lawful wedlock is an illegitimate child.
At the time of the birth of the child, if the father and mother of the child are not
legally married to each other, the child is an illegitimate child.

Illegitimacy under Hindu Law

Under the Hindu Law, if a marriage fulfils all the conditions laid down in Section
7 and Section 5 of the Hindu Marriage Act, 195518 it is considered to be a valid
marriage. Children born of such a valid marriage are alone considered legitimate.
If the conditions lay down under Section 5 of the Act, are not satisfied, the

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resultant marriage may be void or voidable marriage as per Sections 11 and 12 of
the Act.

Void marriage Section 11 of the Hindu Marriage Act, 195519 defines a void
marriage. It says, if the marriage is in contravention of any of the conditions
specified in clauses (i), (iv) and (v) of Section 520 it shall be null and void. The
children born of such a marriage are considered to be illegitimate children. [iv]

Voidable marriage Section 12 of the Hindu Marriage Act, 195521 lays down the
grounds of voidable marriages. If the marriage is annulled under anyone of the
grounds under Section 12, then the children born of such a marriage are
considered to be illegitimate children.

Apart from the above, if proper ceremonies are not performed at the time of
marriage as per Section 7 of the Hindu Marriage Act, the resultant marriage is not
a valid marriage. Children born of such marriage will also fall under the category
of illegitimate children. Hence, children who will fall under the category of the
illegitimate children under Hindu Law may be summed up as follows:

1. Children born of void marriage;

2. Children born of annulled/voidable marriage;
3. Children born of illicit relationship;
4. Children born through concubinage; and
Children born of a marriage which is not valid for want of proper ceremonies.
In essence, under Hindu law the rule of legitimacy is dependent upon the
marriage. The social status of children is determined by the act of their parents. If
they have entered into a valid marriage, the children are legitimate; but if the
parents committed a folly and entered recklessly into an invalid marriage or a
child is conceived even without entering into a relationship of marriage the
resultant innocent child are labelled as illegitimate. The innocent child without
having any hold or control over the act of its parents has to suffer the consequence
of it.

Rights of an Illegitimate Child in the Past

The Hindu law relating to illegitimate children can be discussed under the
following four heads:

1. Maintenance
2. Inheritance
3. Joint Family Property and Partition
4. Guardianship

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Maintenance:

Prior to the coming into force of the Hindu Adoptions and Maintenance Act,
1956, an illegitimate son of a Hindu was entitled to maintenance out of his
father’s coparcenary property and his self acquired property. The father was
bound to maintain his illegitimate son during the period of his minority,
irrespective of the fact whether he had any property or not.

Among the Shudras, illegitimate sons were entitled to maintenance if they could
not inherit or get a share on partition. If, however, the mother was not a Hindu,
this right could not be enforced under the Hindu law. The illegitimate son could,
in that case, proceed against the putative father under the Code of Criminal
Procedure.

Illegitimate daughters had formerly no remedy under Hindu law. They were,
however, entitled to maintenance under the Code of Criminal Procedure, which
right was enforceable only during the lifetime of the putative father and
terminated on his death.

Inheritance:

An illegitimate child is not entitled to succeed to his father. But under the Hindu
Succession Act, illegitimate children are deemed to be related by illegitimate
kinship to their mother and to one another, and their legitimate descendants are
deemed to be related by legitimate kinship to them and one another, and can
therefore inherit from each other under the said Act. An illegitimate child can
inherit the property of his or her mother or of his or her illegitimate brother or
sister. A mother also can inherit the property of her illegitimate child. The father
has no right to inherit the property of his illegitimate child.

Joint Family Property and Partition:

Unlike a legitimate son, an illegitimate son does not acquire any interest in the
ancestral property in the hands of his father; nor does he form a coparcenary with
him, so that during the life-time of his father, the right of the illegitimate son is
only limited to maintenance. But the father may, in his lifetime, give him a share
of his property, which may be a share equal to that of the legitimate sons.

Guardianship:

A mother had a preferential right of guardianship. The mother is considered the

natural guardian of an illegitimate child. The father had no right to the custody of
the illegitimate son during the letter’s minority, and ordinarily, the mother of an

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illegitimate child had the right to the custody of the child during the years of
nurture.

Rights of an Illegitimate Child in the present scenario

The Hindu law relating to illegitimate children and the changes that are done in
the following years are also discussed under the four heads:

1. Maintenance
2. Inheritance
3. Joint Family Property and Partition
4. Guardianship

Maintenance:

Under the Hindu Adoptions and Maintenance Act, 1956, a Hindu is bound,
during his or her life-time, to maintain his or her illegitimate children. The
obligation to maintain illegitimate children is now upon both, the father as well as
the mother. Not only the illegitimate son, but also an illegitimate daughter, is
entitled to be maintained by her father and mother.

The right to be maintained, however, extends only upto the period of minority. An
illegitimate child is not entitled to be maintained by his or her parents after
attaining majority. Such a child will also not be entitled to be maintained if he or
she has ceased to be a Hindu by conversion to another religion.

Moreover, under the Hindu Adoptions and Maintenance Act, an illegitimate son
of a deceased Hindu, so long as he is a minor, and an illegitimate daughter of a
deceased Hindu, so long as she remains unmarried, are entitled to be maintained
by the heirs of the deceased out of the estate inherited by them or by the persons
who take the estate of the deceased.

Such a son or daughter, however, will not be entitled to maintenance under the
said Act if he or she has ceased to be a Hindu by conversion to another religion.

An illegitimate child who has ceased to be a Hindu can, however, apply for
maintenance from his or her father under the Code of Criminal Procedure.

Inheritance:

After the passing of the Hindu Succession Act, 1956, an illegitimate child of a
Shudra cannot inherit the property of his or her father. Formerly, an illegitimate

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son of a Shudra if he was a dasiputra, was entitled to succeed to his father. Now,
under the Act, he cannot.

Joint Family Property and Partition:

Prior to the passing of the Hindu Succession Act, on the death of his father, an
illegitimate son succeeded to his estate as a coparcener with the legitimate son of
his father, and was entitled to enforce a partition against the legitimate son. Now,
under the said Act, however, he cannot succeed his father, as he is not related to
him by legitimate kinship.

Guardianship:

The mother is considered the natural guardian. Now, if both the parents of an
illegitimate child are Hindus, Buddhists, Jains or Sikhs by religion, or if one of the
parents of such child is a Hindu, Buddhist, Jain or Sikh by religion, and such child
is brought up as a member of the tribe, community, group or family to which such
parent belongs or belonged, then the Hindu Minority and Guardianship Act, 1956,
applies to such a child, and under section 6 of the Act, in the case of an
illegitimate boy or illegitimate unmarried girl, the mother is the natural guardian,
and after her, the father is the natural guardian, and in the case of a married girl,
the husband is the natural guardian.

But under that Act, such a guardian is not entitled to act as such, if he or she had
ceased to be Hindu or has completely and finally renounced the world by
becoming a hermit or an ascetic.

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 Chapter 3
Judiciary on Illegitimacy
The court has given some landmark judgements in the field of illegitimacy.

Some of such decisions are:

a. The Supreme Court of India in Revanasiddappa v. Mallikarjun opined that:

the constitutional values enshrined in the Preamble of our Constitution which
focuses on the concept of equality of status and opportunity and also on
individual dignity. The Court has to remember that relationship between the
parents may not be sanctioned by law but the birth of a child in such
relationship has to be viewed independently of the relationship of the parents.
A child born in such relationship is innocent and is entitled to all the rights
which are given to other children born in valid marriage.

b. In Jinia Keotin v. Kumar Sitaram Manjhi, , the Supreme Court has said:
Under the ordinary law, a child for being treated as legitimate must be born in
lawful wedlock. If the marriage itself is void on account of contravention of
the statutory prescriptions, any child born of such marriage would have the
effect, per se, or on being so declared or annulled, as the case may be, of
bastardising the children born of the parties to such marriage.

c. In Kamulammal (deceased) represented by Kattari Nagaya Kamarajendra

Ramasami Pandiya Naicker v. T.B.K. Visvanathaswami Naicker
(deceased) & Ors., the Privy Council held when a Sudra had died leaving
behind an illegitimate son, a daughter, his wife and certain collateral agnates,
both the illegitimate son and his wife would be entitled to an equal share in his
property. The illegitimate son would be entitled to one-half of what he would
be entitled had he been a legitimate issue. An illegitimate child of a Sudra
born from a slave or a permanently kept concubine is entitled to share in his
father’s property, along with the legitimate children.

d. In Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund

Mansingh & Anr., the facts were that the Raja was a Sudra and died leaving
behind a legitimate son, an illegitimate son and a legitimate daughter and three
widows. The legitimate son had died and the issue was whether the
illegitimate son could succeed to the property of the Raja. The Privy Council
held that the illegitimate son was entitled to succeed to the Raja by virtue of
survivorship.

e. In Thrumurthi Ranayammal v. Thrumurthi Muthamal, the Madras High

Court observed, “the wordings of Section 16 of the Hindu Marriage Act, in so

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 far as it is relevant to a marriage void under Section 11, leads to an anomalous
and startling position which could not have been contemplated by the
legislature. The position and status of a child of void marriage should
obviously be the same whether the marriage is declared a nullity under Section
11 or otherwise.

f. In Shanta Ram v. Smt. Dargubai, the Bombay High Court observed that the
children of void marriages would be deemed legitimate, irrespective of the
decree of nullity although they would not acquire the right to succession to the
same extent as is available to the children of valid marriage.

2.

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 Chapter 4
Conclusion
The Indian Society is a metaphysical society and so, it is going through a
transformation stage which consists of two broad categories of people with two
distinct ideologies. One of the groups believes in the orthodox methods of Hindu
religion where having an illegitimate child is a taboo and being one is a bigger
stigma.

The other group in the society consists of people who are rational and liberal in
their outlook and do not consider illegitimacy as a stigma. They do not blame an
illegitimate child for his/her existence instead blames the irresponsible couple.
The laws in the society are also being amended accordingly as the time and the
situation demands.

There is a need to be more liberal towards the illegitimate children and the laws
should also be amended in such a way that they have the best interest of all the
people at heart.

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 BIBLIOGRAPHY

Primary Sources
1. Hindu Marriage Act, 1955
2. (2011) 11 SCC 1
3. (2003) 1 SCC 730, 733
4. AIR 1923 PC 8
5. 1889-90 Indian Appeals 128

Secondary Sources

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

2. http://en.wikipedia.org/wiki/Legitimacy_(law)#History

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

4. http://www.shareyouressays.com/117169/comprehensive-essay-on-the-
illegitimate-children-under-hindu-law

5. http://www.legalblog.in/2011/04/right-to-property-of-illegitimate-
child.html

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