Excluded From The Will - Property & Inheritance Rights Of The Illegitimate Children Under Hindu Law
Author: LawSphereX
Category: Family & Personal Law
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EXCLUDED FROM THE WILL: PROPERTY &
INHERITANCE RIGHTS OF THE ILLEGITIMATE CHILDREN UNDER HINDU LAW Mira Katherine Dhinoo, BA LLB, St. Joseph’s College of Law, Bengaluru
ABSTRACT
The concept of illegitimacy has evolved over time, derived from the Latin maxim, ‘illegitimus’, which translates to ‘’ not in accordance with law’’. Although an illegitimate child did not constitute the same position in the Hindu law as common law, the codified Hindu law changed the stance, most certainly as a result of English colonialism in the Indian subcontinent. With the ever-dynamic evolution of humanity, the concept of property and maintenance of the illegitimate child is evolving too, from the days of initially adopting the law, intending to accommodate the changing needs of society. Children not born into a legally recognised marriage or relationship are given the status of illegitimacy; they are perceived as impure and lowly.
Though these children are recognised under Hindu law, they are severely discriminated against by society as well as by law, the law that is meant to safeguard us from injustices. However, there is a growth in liberalised thinking that is slowly bringing about changes in our imperfect legal system. The purpose of this research paper is to shed light on the rights and legal status of the illegitimate child under the umbrella of the Hindu personal law, focusing on the extent of their inheritance and property rights. Additionally, this paper highlights the evolution of the concept of illegitimacy under Hindu law, giving a critical analysis of how the advancements of judicial rulings have benefited the socio-legal perception of illegitimate children under Hindu law in India. Keywords: Illegitimate, Children, Law, Colonialism, Inheritance, Property, Rights
INTRODUCTION
Dear illegitimate child, Who watches his family go to grave, Carrying the secrets of his wave and Denied the rights that he craves You are seen, you are heard You are as legitimate as can be. Steve Jobs, Oprah Winfrey, Arnold Schwarzenegger and William the Conqueror, though born out of wedlock, emerged as exceptional figures of their eras. Despite such examples of greatness, illegitimate children are still facing discrimination and are sidelined on the sole basis of their birth status. The Universal Declaration of Human Rights 1948, under article 25(2) 1 stated that all children born, whether in or out of wedlock, shall enjoy the same social protection. There is now a growing awareness and concern for the welfare of children, legitimate or not, indicated at both national and international levels by various national policies, human rights groups and constitutional provisions.
According to the UN Global Compact, children are the most marginalised in society. The phase of being a child is arguably the most vulnerable period in a person’s life, they are dependent on others to satisfy their most basic life requirements. Though every child is vulnerable in some way or the other, some children are far more vulnerable than others purely because of their birth status. They are viewed as a living symbol of sin and seen to belong to the disreputable crowd of society, grouped with prostitutes, thieves and beggars. Procreation by a legally wedded man and woman is accepted, but there is a universal disapproval for a child not born in wedlock. The legitimacy of a child is based on the codified law of the religion that is followed by his or her parents or the codified law of the state.
Under all societies and religions of the world, the status of legitimacy of a child has immense consequences, carrying significant implications in their lives. In the rich tapestry of Indian society, the concept of legitimacy still remains highly relevant and intertwined with the rights, status and identity of an individual, on a far deeper level than it was in the ancient days. Illegitimate children are those not born out of lawful wedlock, those born out of void/ voidable marriages or as a result of an illicit relationship. A child of a concubine, a result of adultery, the child born from a pre-marital sexual relation or an incestuous one, is considered a sin and all illegitimate. These children pay the price for their existence simply because of the means through which they came to exist, something that they had no control over, yet borne the consequences of.
Upon the codification of Hindu law and various judicial decisions, illegitimate children are being recognised and are being given rights, as they believed that the children are innocent. 1. RESEARCH PROBLEM Many families continue to remain completely unaware & oblivious of the inheritance and property rights that have been granted to the illegitimate children under the Hindu law, leading to the underutilisation of these rights & protections that then further marginalise the illegitimate children. This incognizant behaviour stems from several factors, including societal bias against illegitimacy and limited access to legal knowledge, consequently failing to assert these rights, which leads to the continuation of the vicious cycle of marginalisation of the ‘illegitimate ’
1. RESEARCH HYPOTHESIS
Historically marginalised in matters of property and inheritance, we are now witnessing a gradual yet profound evolution in the legal recognition and rights of illegitimate children under Hindu Law.
2. RESEARCH QUESTIONS
a. How do social perceptions of legitimacy impact the practical realisation of the ‘illegitimate ’child’s rights? b. What is the current legal status of illegitimate children under Hindu Law? c. How have judicial rulings advanced the rights of the illegitimate child under Hindu Law?
3. EXISTING LEGAL SITUATION IN INDIA
The Hindu Marriage Act 1956, The Hindu Succession Act 1955, and judicial rulings have, over time, established themselves as the basis of the legal standing on the property and inheritance rights of illegitimate children under Hindu law in India. The evolution of these laws shows the continued change in dynamics regarding the legality of illegitimate children and their rights.
This paper deals with the scope of sections 5 and 7 of the Hindu Marriage Act and how, once these sections are abided by, it results in a lawful marriage and, in turn, the children born from such marriages are legitimate. If these sections are not abided by, then the children born from such marriages will be deemed illegitimate. According to section 16 of the same act, it gives rise to mitigating any stigmatisation of children from void and voidable marriages (sections 11 and 12), recognising them as legitimate children, but under section 16 (3) of said act, these children are not entitled to inherit the ancestral property.
4.
SCOPE &
OBJECTIVES
OF THE STUDY No Child is ‘illegitimate’, every child is created from a mother and a father. It is simply the circumstances through which they were conceived that determine whether they are ‘pure ’or not, something they had no control over. Although the ones born out of wedlock are legitimate, the others are borne with the burden of beliefs that swarm every society about their status. This research aims to be the voice for the voiceless, unfolding the inconsistencies in the Hindu law relating to the rights and status of illegitimate children, focusing on their property and inheritance rights. In this new age, no one, no matter their ‘status’, should have to beg for their rights.
5.1 To understand what exactly illegitimacy is and who exactly falls under this category under
Hindu law. This research delves into the concept of legitimacy, talking about the idea of it under common law and the way common law has influenced the rights and status of illegitimacy across nations, including India.
5.2 To provide a brief history of the status of the ‘illegitimate ’in ancient India, in comparison
to their present standing. This paper lays out a brief overview of how the status of illegitimate children was different during ancient India, how English colonialism changed the stance of Illegitimate children in India and the current status of these children under Hindu law in India.
5.3 To delve into the judgments and judicial interpretations that accord rights to the illegitimate
children. This study gives an in-depth analysis of the growth in a liberal mindset of the people and the judiciary regarding the property and inheritance rights of illegitimate children, showing a growth in their acceptance legally, but still, the legislation isn’t foolproof towards these children.
5.4 To understand which type of relationships give rise to illegitimate children under the scope
of codified Hindu law.
5.
RESEARCH
METHODOLOGY
This research paper titled ‘Excluded From The Will ’discusses the property and inheritance rights of the ‘Illegitimate ’children under Hindu law, adopting a number of methodological tools through a qualitative-descriptive & doctrinal approach by utilising secondary sources of data. The choice of this approach stems from the nature of the topic of this study. I’ve relied on a deep delve into the legal framework, judicial interpretations, as well as the evolution of the socio-legal standing of the illegitimate children from ancient India to modern-post-colonial India, in terms of their property and inheritance rights.
This paper is a doctrinal study relying on scholarly papers and statutory provisions, and through a comparative and critical analysis, the methodology chosen seeks to cover the gaps under this topic, ideal for providing a wellrounded and deep analysis of the legal status of the illegitimate children’s property and inheritance rights under Hindu law. 7. 1: TRACING LEGITIMACY An illegitimate child’s status is determined based on their parent’s marital status and subsequently termed as ‘nullius filius’, which translates into ‘no legal rights Illegitimacy . 1’ is seen as anything that deviates from the accepted norms, standards and criteria in society. The word illegitimacy was first used in the 1600s and since then has caused nothing but havoc in the lives of many. Historically, we can see a trend of how laws were more inhumane to the illegitimate children, they were virtual outlaws.
The common law had its way of influencing other existing laws, especially the provisions and rights of illegitimate children.
1 Nandini Srivastava, Illegitimate Children And Their Maintenance Rights In India, THE LAW GURUKUL
(Date of access, time of access) https://www. thelawgurukul. com/post/illegitimate-children-and-theirmaintenance-rights-in-india In the medieval ages in Wales, the illegitimate child was one who was simply not acknowledged by his father and often called by the term ‘bastard’. All children, whether born in or out of wedlock, seemed to enjoy the same legal rights as long as their father acknowledged them, but this was no more the case after the English conquered Wales. Under early American, Spanish, English and Roman laws, the rights of illegitimate children were non-existent. 2 Ethically speaking, there is no justification for laws that discriminate between legitimate and illegitimate children. The ill treatment of illegitimate children over so many generations is truly saddening.
However, with the advent of the 20th century, there has been a change in the sociolegal atmosphere regarding the rights and status of the illegitimate child. 7. 2: ILLEGITIMACY DEFINED The Hindu Marriage Act 1955 deals with marriages solemnised between Hindus, including Buddhists, Jains, Sikhs and anyone born to Hindu parents as long as they are not Muslims, Christians, Parsis or Jews. Under this Act, the illegitimate child is defined as one born from void or voidable marriages. The courts in India decided the criterion for the legitimacy of a Hindu child based on: If the child is born within lawful wedlock, meeting the conditions of sections 5 and 7 of the Hindu Marriage Act 1955. SECTION 5
Neither party has a spouse living at the time of marriage - At the time of marriage neither party (a) is incapable of giving valid consent to it in the consequences of unsoundness of mind; or (b) though capable of giving valid consent, has been suffering from mental disorder of such a kind or to an extent to be unfit for marriage and procreation of children (c) or has been subject to recurrent attacks of insanity
2 Max Rheinstein & Mary Ann Glendon, Illegitimacy, BRITANNICA,(Date of access, time of of access)
https://www.britannica.com/topic/illegitimacy
The bridegroom has attained the age of 21 and the bride the age of 18 - The parties are not within prohibited degrees of relationship unless the custom or usage governing them permits a marriage between the two. - The parties are not sapindas of each other, unless custom or usage governing them permits the marriage between the two.3
SECTION 7
A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party - Where such rights and ceremonies include Saptapadi ( taking 7 steps by bridegroom and bride jointly before the sacred fire), the marriage is complete and binding once the seventh step is taken.4 However, if these conditions are not fulfilled, the marriage can be declared void or voidable accordingly, and the children born out of such marriages will be considered illegitimate. A child is also considered illegitimate if they are born out of an illicit relationship or a relationship with a concubine. So if the marriage satisfies these requirements, it is deemed constitutional, and the children born from it are legitimate.
7.3: THE LEGAL DILEMMA OF SECTION 16 Section 16 of The Hindu Marriage Act, 1955 addresses the legitimacy status of those children born from void and voidable marriages (sections 11 & section 12). The illegitimate child, under this act and its modifications, now has a legitimate status, removing the handicap of inheriting property. This section, 16 (1), mitigates the social stigma and legal disadvantages that were once faced by the illegitimate children, overturning the treatment that they once faced under the common law, which was followed in our nation. Section 16 of said act declared children from void and voidable marriages under Hindu law as legitimate ‘in all senses ’serving a sense of equality amongst all children, bastard or not, but section 16 (3) deems this sense of legitimacy in terms of inheritance of property, limited to only the parent’s self acquired
3 Hindu Marriage Act, 1955, No. 25, Acts Of Parliament, 1955 ( India)
4 Hindu Marriage Act, 1955, No. 25, Acts Of Parliament, 1955 ( India)
property. 5 These children remain excused in terms of ancestral property under the coparcenary governed by the Mitakshara law. In the case of Shanta Ram VS Smt. Dargubai, it was held that children from invalid marriages, regardless of the decision of nullification, would be deemed as legitimate. 6 In the Jinia Keotin case, it was concluded that illegitimate children were allowed to inherit their parent’s self-acquired property. 7 These laws exude a sense of inconsistency. On one hand, they promote equality by providing the capabilities of inheriting property from their parents, but on the other hand, it perpetuates inequality by excluding them from the inheritance of ancestral property.
While mitigating the harsh consequences of declaring a union void or voidable and ensuring the children of said union are safe from being stigmatised, these laws still provide limitations to the inheritance of property. These laws are a reflection of the lingering discomfort of accepting illegitimate children legally due to our deeply rooted historical biases. 7. 4: CONCLUSION & SUGGESTIONS The Hindu Succession Act has long governed Hindus in terms of property distribution and inheritance, and its principles are derived from the Dayabhaga and Mitakshara schools of Hindu Law. While section 8 of the Act grants illegitimate children the ability to inherit their parent’s property, section 16 (3) of the Hindu Marriage Act restricts this inheritance only to their parent’s self-acquired property.
The Mitakshara school of Hindu law, which is practised across regions in India, emphasises on the concept of coparcenary. Here, members receive their inheritance rights during birth, systematically leaving out the illegitimate children or those not viewed as coparceners, hence not giving them rights to ancestral property and confining them to only their parent’s selfacquired property. In contrast, the Dayabhaga school of Hindu law does not believe in the concept of coparcenary but rather, inheritance rights occur upon the death of an individual. Here, children may inherit the father’s property if he wishes to pass it on to them. Under this 5 Dr. Rupa Hazarika, Right To Property And Maintenance Of Illegitimate Child Under Hindu Law, 10 IJMST 684, 685 (2023)
6 purwa bala, Legitimacy and Rights In Hindu Law, 4 IJLR 1145,1149 (2024)
7 Dr, anup p. shah, Hindu Law
The Rights Of An Illegitimate Child, Bombay Chartered Accountants ’Journal ( Nov. 21, 2024, 3:34pm0 https://bcajonline. org/journal/hindu-law-the-rights-of-an-illegitimate-child/ school, if there are no legitimate heirs, the illegitimate heirs may only inherit their parent’s selfacquired property. Furthermore, the status of a female illegitimate child was in a far worse condition. She could inherit property only from her mother and while initially she was not entitled to inherit a male Hindu dying intestate, provisions for maintenance of illegitimate children regardless of gender were made under the Hindu Adoption and Maintenance Act, 1956. 8 The children born into through live in relationships were also deemed legitimate as under the judicial ruling of Bharatha Matha & ors VS R. Vijaya Ranganathan & ors9.
It was stated that if a man and woman cohabitate under the same roof for years, then the child born through such relations will be legitimate. In the case of Revansidappa, the Supreme Court took a new step, one for the new ages and stated that an illegitimate child under section 16 of the Hindu Marriage Act can inherit not only their parent’s self-acquired property but also the ancestral property. 10 In Raja Gounder & ors VS M Sengodan & ors, 2024 INSC 47, a recent judgement which stated that, children born from void or voidable marriages under section 16 of the HMA are still deemed legitimate and can inherit both self-acquired and ancestral property of their parents, but are not considered as coparceners.
11 In view of the provisions made under the acts governing illegitimate children under Hindu law, and as the author of this paper, I can easily state that we have come a long way since the inception of the codified Hindu law that severely discriminated against Illegitimate children. Regardless of such advancements in the rights of illegitimate children, it is important for us to understand that there is still severe social stigma that engulfs the way people treat and view illegitimate children across various societies. People continue to be ignorant towards them, and since there is a lack of uniform code and educational awareness of the rights of illegitimate children, they continue to be victims of societal biases. The liberal and rational thinking of the 8 Dr. Rupa Hazarika, Right To Property And Maintenance Of Illegitimate Child Under Hindu Law, 10 IJMST 684, 685 ( 2023) 9 Dr.
Rupa Hazarika, Right To Property And Maintenance Of Illegitimate Child Under Hindu Law, 10 IJMST 684, 688 ( 2023) 10 Mansi Bharat Cheda, Inheritance And Succession Rights Of Illegitimate Children Under Hindu Law In India,
3 JCLJ 688, 694 (2022)
11 Right Of Illegitimate In Ancestral Property In 2024, COMMERCIAL NOIDA( Nov 14, 2024)
https://www. commercialnoida. com/blog/right-of-illegitimate-child-in-ancestral-property-in-2024. html# people has given rise to rights for the illegitimate children, yet they continue to suffer, given the stigma and discrimination they continue to face in this day and age. Some suggestions to make the lives of illegitimate children better would be: 1. Though there have been liberal judicial rulings, section 16 of the HMA must be amended to grant the illegitimate children equal inheritance rights to their parent’s ancestral property. 2. Judges and Lawyers must have sensitization training to address cases involving illegitimate children, encouraging a more child centric approach in such disputes. 3. Promotion of a Uniform Civil Code so that there’s some sense of uniformity while dealing with cases regarding illegitimate children’s rights across states in India. 4.
The government must launch awareness programs in urban and rural India to educate the illegitimate children of their rights and to destigmatize them.
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