The codified and uncodified aspects of Hindu Law deal with several personal issues pertaining to a Hindu. One such issue is the rights of an illegitimate child in relation to inheritance of ancestral property, self-acquired property of his parents, right to claim maintenance, etc.
VOID / VOIDABLE MARRIAGE
The Hindu Marriage Act, 1955 applies to and codifies the law relating to marriages between Hindus. It states that an illegitimate child is one who is born out of a marriage which is not valid. A valid marriage is one which does not suffer from the disabilities mentioned in this Act, viz., neither partner has another spouse living at the time of the marriage; neither of them is of unsound mind / has a mental disorder / is insane; they are not under the marriageable age; the parties are not within prohibited degrees of relationship as laid down in Hindu law; the parties are not sapindas (defined common relationships) of each other. For all void marriages, the Act provides that a decree of nullity can be obtained from a court of law. Hence, the marriage is treated as null and void. Thus, if there is a marriage which suffered from any of these defects then the same would be void. Certain marriages under the Act are voidable at the option of the party who is aggrieved.
ILLEGITIMATE CHILD – MEANING
A child born out of such a void or voidable wedlock would have been treated as an illegitimate child prior to the amendment of the Hindu Marriage Act in 1976. From 1976, the Hindu Marriage Act has been amended to expressly deal with an illegitimate child. Section 16(1) provides that even if a marriage is null and void, any child born out of such marriage who would have been legitimate if the marriage had been valid, shall be considered to be a legitimate child. This is true whether or not such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976. This would also be the case whether or not a decree of nullity is granted in respect of that void marriage under this Act.
It also provides that if a decree of nullity is granted in respect of a voidable marriage, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.
Hence, now all children of void / voidable marriages under the Act are treated as legitimate. The Act also provides that such children would be entitled to rights in the property of their parents.
The Supreme Court in Bharatha Matha & Anr. vs. R. Vijaya Renganathan, AIR 2010 SC 2685 has held that ‘it is evident that Section 16 of the Act intends to bring about social reforms, conferment of social status of legitimacy on a group of children, otherwise treated as illegitimate, as its prime object.’
In Jinia Keotin & Ors. vs. Kumar Sitaram Manjhi & Ors. (2003) 1 SCC 730, the Apex Court explained the meaning behind the Amendment as follows:
‘4 … Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. … The legitimate status of the children which depended very much upon the marriage between their parents being valid or void, thus turned on the act of parents over which the innocent child had no hold or control. But for no fault of it, the innocent baby had to suffer a permanent setback in life and in the eyes of society by being treated as illegitimate. A laudable and noble act of the legislature indeed in enacting section 16 to put an end to a great social evil.’
In S.P.S. Balasubramanyam vs. Suruttayan @ Andali Padayachi & Ors. AIR 1992 SC 756 the Supreme Court held that if man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption u/s 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate. Thus, even children born out of a live-in relationship were accorded legitimacy.
In Rameshwari Devi vs. State of Bihar & Ors. AIR 2000 SC 735 the Supreme Court dealt with a case wherein after the death of a government employee, the children born illegitimately to the woman who had been living with the said employee, claimed a share in the pension / gratuity and other death-cum-retirement benefits along with children born out of a legal wedlock. The Court held that u/s 16 of the Act, children of a void marriage are legitimate. As the employee, a Hindu, died intestate, the children of the deceased employee born out of the void marriage were entitled to a share in the family pension, death-cum-retirement benefits and gratuity.
SUCCESSION TO PROPERTIES OF OTHER RELATIVES
However, the Amendment Act has also introduced an interesting caveat, that while such a child born out a void or voidable wedlock would be deemed to be legitimate, the Amendment would not be treated as conferring any rights in the property of any person other than its parents.
In Smt. P.E.K. Kalliani Amma & Ors. vs. K. Devi & Ors. AIR 1996 SC 1963 the Apex Court held that section 16 of the Act was not ultra vires of the Constitution of India. 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, had to be treated as legitimate. They could not, however, succeed to the properties of any other relation on the basis of this rule which in its operation was limited to the properties of the parents.
Again, in Jinia Keotin & Ors. vs. Kumar Sitaram Manjhi & Ors. (2003) 1 SCC 730 the Supreme Court held that section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable, chose also to confine its application, so far as succession or inheritance by such children is concerned, to the properties of the parents only. It held that conferring any further rights upon such children would be going against the express mandate of the Legislature.
This view was once again endorsed by the Supreme Court in Bharatha Matha (Supra) where it held that a child born of a void or voidable marriage is not entitled to claim inheritance in ancestral coparcenary property but is entitled only to claim share in self-acquired properties, if any.
CONTROVERSY IN THE ISSUE
The above issue of whether illegitimate children can succeed to ancestral properties or claim a share in the HUF was given a new twist by the Supreme Court in 2011 in the case of Revanasiddappa and Anr. vs. Mallikarjun and Ors. (2011) 11 SCC 1. The question which was dealt with in that case was whether illegitimate children were entitled to a share in the coparcenary property or whether their share was limited only to the self-acquired property of their parents u/s 16(3) of the Hindu Marriage Act? It disagreed with the earlier views taken by the Supreme Court in Jinia Keotin (Supra), Bharatha Matha (Supra) and in Neelamma & Ors. vs. Sarojamma & Ors. (2006) 9 SCC 612, wherein the Court had held that illegitimate children would only be entitled to a share of the self-acquired property of the parents and not to the joint Hindu family property.
The Court observed that the Amendment had used the word ‘property’ and had not qualified it with either self-acquired property or ancestral property. It has been kept broad and general. It explained that if they have been declared legitimate, then they cannot be discriminated against and they will be at par with other legitimate children and be entitled to all the rights in the property of their parents, both self-acquired and ancestral. The prohibition contained in section 16(3) will apply to such children only with respect to property of any person other than their parents. Qua their parents, they can succeed to all properties. The Court held that there was a need for a progressive and dynamic interpretation of Hindu Law since the society was changing. It stressed the need to recognise the status of such children who had been legislatively declared legitimate and simultaneously recognise the rights of such children in the property of their parents. This was a law to advance the socially beneficial purpose of removing the stigma of illegitimacy on such children who were as innocent as any other children.
The Supreme Court also explained the modus operandi of succession to ancestral property. Such children will be entitled only to a share in their parents’ property, but they could not claim it in their own right. Logically, on the partition of an ancestral property the property falling in the share of the parents of such children would be regarded as their self-acquired and absolute property. In view of the Amendment, such illegitimate children will have a share in such property since such children were equated under the amended law with the legitimate offspring of a valid marriage. The only limitation even after the Amendment was that during the lifetime of their parents such children could not ask for partition, but they could exercise this right only after the death of their parents.
Hence, the Court in Revanasiddappa (Supra) concluded that it was constrained to take a view different from the one taken earlier by it in Jinia Keotin (Supra), Neelamma (Supra) and Bharatha Matha (Supra) on section 16(3) of the Act. Nevertheless, since all these decisions were of two-member Benches, it requested the Chief Justice of India that the matter should be reconsidered by a larger Bench.
CURRENT STATUS
It has been close to ten years since the above request for a larger Bench, but the matter has not yet been resolved. This issue once again cropped up in the Supreme Court in the case of Jitender Kumar vs. Jasbir Singh CA 18858/2019 order dated 21st October, 2019. The Supreme Court observed that since this issue has been referred to a larger Bench, the current case would be decided only after its hearing.
MAINTENANCE
Section 20 of the Hindu Adoptions and Maintenance Act, 1956 also needs to be noted; it provides for maintenance of children by a Hindu. A Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children during their minority. In addition, an unmarried Hindu daughter (even if illegitimate) can claim maintenance from her father till she is married relying on section 20(3) of this Act, provided that she pleads and proves that she is unable to maintain herself from her own earnings. This is also the view expressed by a three-Judge Bench of the Supreme Court in Abhilasha vs. Parkash, Cr. Appeal No. 615/2020, order dated 15th September, 2020.
GUARDIANSHIP
Who would be the natural guardian of such an illegitimate child is another interesting question. The Hindu Minority and Guardianship Act, 1956 states that a natural guardian of a Hindu minor (if he is a boy or an unmarried girl) and / or his property, is the father and after him the mother. In case the minor is below the age of five years, the child’s custody ordinarily vests with the mother. However, the Act provides an exception to this Rule that in the case of an illegitimate boy or an illegitimate unmarried girl, the mother would be the natural guardian and only after her can the father be the natural guardian. Recently, the Bombay High Court in Dharmesh Vasantrai Shah vs. Renuka Prakash Tiwari, 2020 SCC OnLine Bom 697, reiterated that in case of an illegitimate child it is only the mother who can be the natural guardian under Hindu Law. The only exception is if the mother has renounced the world by becoming a hermit or has ceased to be a Hindu. The Court held that since it was the father’s own case that the child was an illegitimate child, it was difficult to see how he could claim the custody of the child over the biological mother. The Supreme Court has taken a similar view in the case of the guardianship of an illegitimate Christian child in the case of ABC vs. State of Delhi (NCT) (2015) 10 SCC 1.
CONCLUSION
The issue relating to various rights of illegitimate children has been quite contentious and litigation prone. One eagerly awaits the constitution of the larger Supreme Court Bench. Clearly, it is high time for a comprehensive legislation dealing with all issues pertaining to such children. In the words of the Apex Court, ‘they are as innocent as any other children!’
