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‘RIGHTS OF AN ILLEGITIMATE CHILD UNDER HINDU LAW’

By

Name of the Student: Jahnavi Gopaluni

Roll No.: 20LLB035

Semester: IV

Name of the Program: 5 Year B.A., LL.B.(Hons.)

Name of the Faculty Member: Prof. P. VARALAXMI

Date of Submission: 12-05-22.

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM,
VISAKHAPATNAM – 531035, ANDHRA PRADESH
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CERTIFICATE

Title of the subject: Family Law - II

Name of the faculty: Prof. P. Varalaxmi

I, Jahnavi Gopaluni, hereby declare that the project that I have submitted is my
“

own work. All of the sources from which the ideas were derived have been properly
cited. To the best of my knowledge, there is no issue of plagiarism in the projects.

Name: Jahnavi Gopaluni

Roll No. 20LLB035

Semester IV
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ACKNOLEDGEMENT

I want to express my profound gratitude to our respected Family Law teacher for providing me
with opportunity to create my project and for providing me with the help I needed to complete it effectively.
I'd also like to express my thankfulness to my classmates for their excellent contributions and cooperation.
To the best of my knowledge, I have sought to gather information and have compiled it here.
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TABLE OF CONTENTS
CONTENTS Pg. No

1. ABSTRACT 5

2. SYNOPSIS 5-6

3. INTRODUCTION 7-8

8-9
4. SECTION 16 OF HINDU MARRIAGE ACT:
LEGITIMACY OF A CHILD BORN OUT OF VOID OR
VOIDABLE MARRIAGES

5. RIGHTS OF LEGITIMIZED CHILDREN UNDER LAW 9-12

6. CASE LAWS 12-15

7. LEGAL LACUNA AND SUGGESTIONS 16

8. CONCLUSION 17

9. BIBLIOGRAPHY 17-18
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ABSTRACT

The legitimacy of a child in Hindu law depends on the validity of the marriage under Hindu
Marriage Act. The Hindu Marriage Act applies to a person who is Sikh, Jain or Buddhist by
religion. Therefore, the illegitimacy criteria followed in above three religions will be the same
as followed in Hindu law. The strict interpretation of Hindu texts leads to a conclusion that a
child should have been conceived after marriage to be considered as legitimate. A Privy
Council judgment, however, held that only birth during wedlock was a necessary criterion of
legitimacy under the Hindu law, which is a binding law. 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 su ch marriage was
deemed to be illegitimate. However, after amendments to s.16 of Hindu Marriage Act,
legitimacy is conferred upon children born out of a marriage irrespective of whether it is void
/ voidable or decree of nullity is passed or not.

SYNOPSIS

OBJECTIVES OF RESEARCH:

The objective of the study is to:

1. Discuss the legitimacy of children born out of unlawful marriages under Hindu law.
2. Examine the rights conferred upon children deemed to be illegitimate

SCOPE OF THE STUDY:

The study is limited to examining the position of law regarding rights of an illegitimate child
under Hindu law.

RESEARCH QUESTION:

1. Whether legislature has been capable of addressing the legal lacunae in legitimacy of
children?
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SOURCES REFERRED TO:

Primary sources:

1. The Hindu Marriage Act, 1955

2. The Marriage Laws (Amendment) Act, 1976.
3. Hindu Minority and Guardianship Act, 1956.
4. Hindu Succession Act, 1956.

Secondary sources:

1. RIGHTS OF LEGITIMATIZED CHILDREN UNDER HINDU LAW (Journal of the

Indian Law Institute).
2. Kusum and Punam Pradhan, “Family Law Lectures – Family Law-I”, Lexis Nexis.

LITERATURE REVIEW:

Reddy, V. Raveendra. “RIGHTS OF LEGITIMATIZED CHILDREN UNDER HINDU

LAW” Journal of the Indian Law Institute:

This journal attempts to depict the situation of legitimized children under Hindu Law and their
rights. Author has conducted a critical examination of various developments in law and various
judgements wherein the rights of illegitimate children have been recognized and upheld . The
researcher of the present study has gained valuable information regarding the extent of
exercisability of the rights of illegitimate or legitimized children under the Indian law.

RESEARCH TYPE:

Analytical research.

RESEARCH METHODOLOGY:

Non-doctrinal method of research.

MODE OF CITATION:

The researcher has employed Oxford University Standard for the Citation of Legal Authorities
(OSCOLA), Fourth Edition.
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INTRODUCTION
Under Hindu Marriage Act, s.11 and 12, children who are born out of the void or voidable
marriage are considered as illegitimate. 1 If the marriage stands in contravention to clause-(i),
(iv), and (v) of s.5 under the said Act, that is; if marriage is bigamous/parties to the marriage
are under a prohibited degree of relationship/husband and wife are sapindas, then such marriage
is considered as void.

Moreover, s.12 of HMA talks about voidable marriages as one that can be declared void if
certain conditions are met vide s. 12(1) regarding the solemnisation of marriage. Furthermore,
the marriage is invalid if the essential ceremonies under s.7 of the Act have not been performed,
and in case the child is born from such marriage, then that child will be considered as
illegitimate.

Valid marriage under Hindu Marriage Act, 1955

Under the Hindu Marriage Act, marriage is void under following circumstances: 2

1. If the marriage is a bigamous marriage. 3

2. If the persons who are married are sapindas of each other. 4
3. If the persons who are married are within prohibited degrees of relationship. 5

The effect of categorizing such marriages as void will be that the marriage was never in
existence. Marriage is valid if all the conditions laid down in Section 5 and 7 are fulfilled and
the children born of such marriage are considered as legitimate. In following situations,
marriage will be voidable at the option of one party: 6

1. when the other party was insane at the time of marriage;

2. when the other party was impotent at the time of marriage;
3. when the wife was pregnant at the time of marriage by some person other than the
husband (without the latter’s knowledge); and

1
The Hindu Marriage Act, 1955, ss.11, 12.
2
Ibid, s 5.
3
S. 5(i).
4
S. 5 (ii).
5
S. 5 (iii).
6
S. 12.
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4. (If) when the consent of the other party (or the guardian’s consent in regard to a minor
bride) was obtained by force or fraud.

In above situations, option rests with the party to get the decree of annulment from courts (in
void marriages, decree of annulment is granted). The children will be considered legitimate till
court grants decree.

However, legitimization of such children born out of void or voidable marriages irrespective
of whether annulled or not has been made by and introduction of an amendment to Hindu
Marriage Act in 1976, by virtue of s.16 of HMA.

SECTION 16 OF HINDU MARRIAGE ACT: LEGITIMACY OF

A CHILD BORN OUT OF VOID OR VOIDABLE MARRIAGES

The Hindu Marriage Act, 1955 was amended in the year 1976 and the amendment brought with
it sweeping changes to the social milieu such as acknowledging the rights of illegitimate
children, notwithstanding that it was only concerned with children begotten from a void or
voidable marriage. In the pre-amended act, under Section 16, a child begotten from a void or
voidable marriage was considered legitimate only if a degree of nullity was awarded for the
marriage between the parents of the child. Further, such a child would be considered to be a
legitimate child in a manner as if the marriage between the parents of the child was been
dissolved instead of being annulled. When, in the event that the parents of the child did not
obtain a declare of nullity for their marriage, the child would be considered an illegitimate child
and therefore would be precluded from various inheritance rights. Such a provision in a social
welfare legislation like the Hindu Marriage Act, 1955 was problematic as children should not
be “basterdised” whether a decree of nullity is passed or not and therefore the need to amend
the section was crucial for courts to fill the lacunae in the statute. 7

Thereafter, the Parliament brought about an amendment by passing The Marriage Laws
(Amendment) Act, 1976. 8 After the 1976 amendment, a child born from a void or voidable

7
Reddy, V. Raveendra. “RIGHTS OF LEGITIMATIZED CHILDREN UNDER HINDU LAW.” Journal of the
Indian Law Institute 34, no. 3 (1992): 466–71. http://www.jstor.org/stable/43951456.
8
The Marriage Laws (Amendment) Act, 1976.
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marriage will be considered to be a legitimate child in the same manner as though he was
begotten from a valid marriage even if a degree of nullity or annulment has not been obtained
by the parents of the child.

This was a crucial and important amendment as Section 16 is a benefit legislation and now
innocent illegitimate children, whose social status is determined by the act or follies of their
parents would not suffer from prejudice or whose familial rights would not suffer any infirmity.
However, it is pertinent to note that this amendment is only pertinent to those children who are
born from void or voidable marriages and does not address the concerns of illegitimate children
born to individuals who do not have any marital relationship between them. The rights of these
illegitimate children are addressed in other statutory provisions and precedents, which have
been enumerated hereinbelow.

RIGHTS OF LEGITIMIZED CHILDREN UNDER LAW

RIGHT TO MAINTENANCE:

Before the personal laws of Hindus were codified, the old law of Mitakshara and Dayabhaga
governed each and every aspect of Hindu personal issues. The old law recognized maintenance
rights of the illegitimate son of a Hindu 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. Illegitimate daughters
were however not entitled to maintenance unless they proceeded a claim under Code of
Criminal Procedure, section 125, during the lifetime of the father. 9

Under s.20 of the Hindu Adoption and Maintenance Act, both parents are legally obliged to
maintain their legitimate and illegitimate child, if they had not converted to some other religion.
And, in case of death of either or both the parents, then also, an illegitimate child has right to
be maintained from parent’s estate till the male child attains the age of 18-years, and daughter
gets married.

9
Kusum and Punam Pradhan, “Family Law Lectures – Family Law-I”, Lexis Nexis, Ch.5, 5th ed.
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RIGHT TO INHERIT:

There is a sense of ambiguity in the realm of succession and inheritance rights of illegitimate
children in India, compared to other rights available to them such as maintenance rights. One
of the reasons this is because there does not exist a secular or neutral legislation that addresses
the issue of inheritance rights or succession like is the case with the remedy of maintenance
available under Section 125 CrPC and all matters of succession are under the purview of
personal, religious laws.

The inheritance rights of illegitimate children have not been given any statutory recognition.
The Hindu Succession Act, 1956 only recognizes legitimate kinship and in the case of
illegitimate children, they are deemed to be related to their mothers only and can inherit the
property of their mothers in accordance with the laws of succession that govern women under
Section 14 of the HSA. illegitimate child is biological mother’s child. This means that the child
has a right to inherit from his or her biological mother unless there was an adoption where the
mother did not remain a legal parent.

Under Hindu personal law, the inheritance rights of illegitimate children is codified under
Section 16(3) of the Hindu Marriage Act, 1955 which states that the children born out of void
or voidable marriages are only entitled to property belonging to their parents and not anyone
else’s had they not been the legitimate children of their parents. This section has been
historically interpreted in such a manner so as to state that illegitimate children have a right of
inheritance over the self-acquired property of their parents and not the ancestral or co-parcener.

In the recent case of Revanasiddappa v. Mallikarjun, 10 the Supreme Court held that illegitimate
children have a right to not only the self -acquired property of their parents but also their
ancestral property. The Supreme Court disagreed with the rationale in previous cases which
held that illegitimate children do not have any right in the ancestral property of their parents
and only have a right in their self-acquired property. The reason for the disagreement was that
since the constitutional values enshrined in the Preamble of our Constitution focus on the
concept of equality of status and opportunity and also on individual dignity, the 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.

10
Revansidappa v Malikarjun (2011) 11 SCC 1.
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Further, the Supreme Court observed that 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. On the
partition of an ancestral property, the property falling in the share of the parents of such children
is regarded as their self-acquired and absolute property and therefore it is illogical for the
children to not have any share in such property since such children are equated with legitimate
children of valid marriage. However, even now illegitimate children can exercising their right
in an ancestral property by asking for a partition upon the death of their parents and not during
their lifetime.

Since there was no restriction imposed in Section 16 (3), such children would ha ve a right to
whatever “becomes the property of their parents whether self -acquired or ancestral,” the Bench
said. But this matter is sub-judice and currently, the position of law has been explained by
Bombay High Court through upholding the old stance of limiting the rights of an illegitimate
child to parent’s property only.

RIGHT TO GAURDIANSHIP:

A mother has a preferential right of guardianship, as per Hindu Minority and Guardianship Act,
1956. The mother is considered the natural guardian of an illegitimate child and after her, the
father is the natural guardian, and in the case of a married girl, the husband is the natural
guardian. Supreme Court has recently ruled that an unwed single mother in India can be a sole
guardian of the child.

Under s. 6(b) of Hindu Minority and Guardianship Act, first “mother” and then “father” is
considered as a natural guardian of an illegitimate child. Furthermore, it applies in those case
where both the parents of an illegitimate child belong to Hindu religion, and if only one parent
is Hindu, then to get the benefits of s.6(b), an illegitimate child is required to be reared under
Hindu tradition. However, if an illegitimate child converts the religion or renounces the world,
then rights with respect to being an illegitimate child get automatically revoked. 11

11
S. 6(b) of Hindu Minority and Guardianship Act, 1956.
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CASE LAWS

Kamulammal (deceased) v. T.B.K. Visvanathaswami Naicker

(deceased) & Ors (1992) 12

RATIO DECIDENDI: 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.

FACTS OF THE CASE:

In 1888, Kamaraja pandiya Naicker, the zamindar of bodinaickenur, Shudra by caste, died. He
was married to Kamulammal (Appellant) and had one daughter from this marriage. He had sole
illegitimate son named visvanathaswami naicker (Plaintiff). The son claimed his share in his
father’s property to which the widowed wife was against. He filed a plaint before sub -ordinate
court. The widowed wife produced a paper writing as last will of her husband. However, courts
have held it not proved. The sub-ordinate judge in 1905 decreed one-third share to the son and
in an appeal to high court, in 1915, high court decreed one-half share to the son. The widowed
wife appealed against this decree to privy council. Both widow and illegitimate son died during
the litigation were being represented by representatives.

ISSUES RAISED:

Whether the plaintiff being the sole illegitimate son of the late zamindar is entitled as against
the appellant, lawfully married widow, to share in self -acquired properties of zamindar.

JUDGEMENT:

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 son of his father. An illegitimate child of a Sudra

12
Kamulammal (deceased) represented by Kattari Nagaya Kamarajendra Ramasami Pandiya Naicker v. T.B.K.
Visvanathaswami Naicker (deceased) & Ors AIR 1923 PC 8.
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born from a slave or a permanently kept concubine is entitled to share in his father’s property,
along with the legitimate children.

Appeal was dismissed with costs.

Shanta Ram v. Smt. Dargubai 13

FACTS OF THE CASE:

A man named Tukaram was married to Dargubai (Plaintiff). She has three daughters from
Tukaram. During the subsistence of his marriage with dargubai, Tukaram married another
woman. From her he got a son, Shanta ram (Appellant). Tukaram died in 1978 leaving behind
several properties. Plaintiff, dargubai, filed suit against defendant, Shanta ram , who was in
possession of that property. They prayed to court to declare the plaintiff as not being a legal
heir of Tukaram.

ISSUES RAISED:

1. During the subsistence of a person’s valid first marriage, whether his child form his
void second marriage be legal heir to property.

JUDGEMENT:

After examining the provisions, the Division Bench came to the conclusion that legitimacy
created by section 16 must be read into as part of the definition in section 3(1)0). If so construed
the child of void marriage is related to his father within the meaning of section 3(1)(j) and
hence succeeds to his estate. Thus, the children of void and annulled voidable marriages are
entitled to succeed to the property of their father as legitimate children. Bombay High Court
observed that the they would not acquire the right to succession to the same extent as is
available to the children of valid marriage.

13
Shantaram v. Smt Dargubai, AIR 1987 Bom 182.
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The court summarised the position of law as follows:

A child of a marraige which is void under the provision of Hindu Marriage Act, whether a
decree of nulity is passed or not, is a legitimate child (S. 16(1), Hindu Marriage Act);

Such a child does not acquire right to ancestral property which a legitimate child would, but
the legitimacy confers upon him right to property of his parents. (S. 16(3), Hindu Marriage
ACt);

Revanasiddappa & Anr vs Mallikarjun & Ors 14

FACTS OF THE CASE:

The case was earlier filed in the trial court by the petitioner and her two children against the
respondents. The plaintiff was the first wife. She claimed 1/4 share in the property of the
husband which was given to the second wife of the man. She claimed that the man married the
second wife while his first marriage still continued. Hence the second wife and the children do
not have any rights in the ancestral property.

While the defendants contended that the said property was not ancestral property and self -
acquired property. Hence, they can inherit it. They also claimed that the plaintiff had no right
to the partition as she was not the legally wedded wife of the defendant.

The trial ruled in favour of the plaintiff. The defendant aggrieved by the order filed an appeal
in the higher court.

ISSUES RAISED:

Whether the 'illegitimate' children have the right to inherit the ancestral property?

14
Revanasiddappa & Anr vs Mallikarjun & Ors, 2011 (86) ALR 450.
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JUDGEMENT:

The honourable court said that "In view of the legal fiction contained in Section 16, the
illegitimate children, for all practical purposes, including succession to the properties of their
parents, have to be treated as legitimate. They cannot, however, succeed to the properties of
any other relation on the basis of this rule, which in its operation, is limited to the properties of
the parents."

In the instant case, Section 16(3) as amended, does not impose any restriction on the property
right of such children except limiting it to the property of their parents. Therefore, such children
will have a right to whatever becomes the property of their parents whether self -acquired or
ancestral.

The court also observed 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 a relationship is innocent and is entitled to all the rights
which are given to other children born in a valid marriage."

It is however pertinent to note that this case was related to a matter where there was marriage
but not a valid form of marriage. Hence the inheritance rights of a child born out of a live -in
relationship is still a debate in India. But such cases are an important preced ent for the future.

But this matter is sub-judice and currently, the position of law has been explained by Bombay
High Court through upholding the old stance of limiting the rights of an illegitimate child to
parent’s property only.

LEGAL LACUNA AND SUGGESTIONS:

Although the courts of the country have recognized that the rights of a child deemed as
illegitimate due to any reason can be no less important than the rights of a child who is
legitimate and any supposition otherwise goes against the ethos of our constitution , The
legislature has been incapable of addressing the issue and filling the lacuna of legitimacy of
such children.

There are presently only two affirmative actions that have been taken by legislature in the
benefit of illegitimate children. One is provision of right to maintenance under section 125 of
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Criminal Procedure Code and the other is amendment which brought section 16 of Hindu
Marriage act to recognize the legitimacy of children born out of void and voidable marriages.
Even under this there is ambiguity associated with inheritance rights of an illegitimate child as
section 16(3) does not give right to inherit from anyone other than parents as opposed to fact
that legitimate child is enabled to do the same.

Nothing is clear regarding the legitimacy of children who are not born of any marriage.
Whether they should be treated as illegitimate or legitimate is not clarified in any legislation,
although courts have expressed the opinion that implies, they deserve equal rights under any
situation.

These lacunae are required to be filled by the legislature through some clear-cut rule which
recognizes the rights of an illegitimate child and define what they are entitled to and what
they’re not. The required protections for such children are also to be devised in order to truly
uphold the spirit of constitution.

CONCLUSION
As a society, we often ignore the rights which an illegitimate child deserves as equal to a
legitimate child. The apathy of illegitimate children Justice, it seems, has pervaded the
illegitimate children in our country, for no mistake of their own. The legislature thinking
reflects awareness of this area and it has seized the problem in only a limited sphere by
conferring the status of legitimacy on the children born of void and voidable marriages and
granting them a right to maintenance only under the Section 125 of the Code of Criminal
Procedure, 1973.

It was considered that debarring the illegitimate child from inheriting the property of its parents
would deter further generations from entering into a sexual relationship outside marriage and
would enforce a strict regime of proper sexual mores in society. However, trends and statistics
have shown that the problem of illegitimate births in the country has been increasing at an
alarming rate, hence the above argument to justify the exclusion of illegitimate children from
inheriting property of parents cannot be bought and falls flat.

To conclude, even though there are laws that try to ensure that these children are also taken
care of, (For example, Section 16 that confers legitimacy on children born out of void or
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voidable marriages, propositions given by supreme court in recent cases) it still cannot be said
that these children are treated equally. It becomes a more difficult job to work through due to
the social discrimination and stigma attached to these children who are undeserving of it. It is
a big issue in India and needs to be addressed more wholly across social and legal contexts.

BIBLIOGRAPHY

1. The Hindu Marriage Act, 1955

2. The Marriage Laws (Amendment) Act, 1976.
3. Hindu Minority and Guardianship Act, 1956.
4. Hindu Succession Act, 1956.
3. Journal of the Indian Law Institute.
4. Kusum and Punam Pradhan, “Family Law Lectures – Family Law-I”.
5. Lexis Nexis.
6. SCC Online.
7. Manupatra.
8. India kanoon.