nimisha

This article is written by Nimisha Srivastava,  a student of GNLU.

The Christian law of inheritance in India is regulated by the Indian Succession Act, 1925. The Indian Succession Act (ISA) only recognizes kinship, therefore adopted and illegitimate children are excluded from the ambit of the act. Christian law provides for equal inheritance rights to sons and daughters only if they are born from a valid marriage. ’Child’ under ISA does not include illegitimate child. [1]

Indian Christian marriage act defines void marriages as following:

  1. Section 4 says if either the bride or bridegroom is Christian and the marriage is not solemnized and registered according the provisions of this Act, the marriage is void.
  2. As per Section 26 and 52 if the Marriage is not solemnized within two months after the notice is given, the marriage is void.
  • Section 60 says that If the persons intending to be married has a wife or husband still living than marriage is void;
  1. Marriages solemnized in contravention of mandatory provisions of the Act.

Since Indian Divorce Act is applicable to divorce under Christian law, Section 18 and 19 provides in what situations marriage soleminized under Christian religion may be declared null and void:

  1. the respondent was impotent at the time of marriage and at the time of institution of

the suit;

  1. the parties are within prohibited degree of consanguinity or affinity;
  2. either party was lunatic or idiot at the time of marriage;
  3. the former husband or wife of either party was living at the time of marriage and the

earlier marriage was subsisting; or

  1. if the consent of either party was obtained by force or fraud.

Under section 21 of the Indian Divorce Act, 1869 only annulment of the marriage in two situations can confer the status of legitimacy to children born of the marriage, viz., (a) a second marriage during the subsistence of the first marriage in good faith that the former spouse was not

alive, and (b) insanity.

Thus illegitimate children born out of all kinds of void marriage are not debarred from inheriting the estate of their parents and child is disqualified only if born out of prohibited degree or when the other party is impotent.

In Christian law, we see discrimination exists between children born out of different grounds of void marriages.

 

Maintenance:

The personal law of Christian does not also confer any obligation on the parents to maintain their illegitimate child though such child can claim maintenance under the secular law provisions of Code of Criminal Procedure, 1973. A minor child whether legitimate or illegitimate has no right to claim separate maintenance as per the decision of the court in Chacko v.Daniel[2]. On issues relating to succession only the lawfully wedded wife and legitimate children have the claim.

Guardianship:

In accordance to the changing needs and nature of the society, the Supreme Court ruled that an unwed mother can be appointed as the sole legal guardian of her child without the consent of the father. India is changing, and many single parent families are emerging. The Court refused to involve father in the petition who was even unaware of the existence of the child.

The legal recognition by father is irrelevant in situation when the mother is the sole care giver of the child. Welfare of child has paramount importance and taking into account the law in countries like UK, USA, Newzealand, Philippines and South Africa, ruled that unwed mother has primary custodial and guardianship rights over the child.

The main issue that arose in this case was with respect to procedural requirement as per the Guardians and Wards Act, according to which the notice is required to be sent to father to obtain his consent, as petitioner has applied for guardianship. The bench gave a liberal interpretation to Section 11 of the Guardians and Wards Act, ruling that in the case of illegitimate children whose sole caregiver is one of his or her parents, the term “parent” would mean principally mean that parent alone.

The bench also decided not to be swayed by the tenets of Christian law, and said: “India is a secular nation and it is a cardinal necessity that religion be distanced from law. Therefore, the task before us is to interpret the law of the land, not in light of the tenets of the parties’ religion but in keeping with legislative intent and prevailing case law.”

It further noted that unwed Christian mothers in India are disadvantaged when compared to their Hindu counterparts who are the natural guardians of their illegitimate children by virtue of their maternity alone. “It would be apposite for us to underscore that our Directive Principles envision the existence of a uniform civil code, but this remains an unaddressed constitutional expectation,” the bench stated.[3]

Indian Succession Act, 1925:

The ISA is based on Statue of Distribution which used to govern the succession of the personal property in England.  The Act provided no discrimination in inheritance on the basis of sex. Rights of both half blood and full blood were recognized.

In Smith v. Massey[4], it was held that where there were two sisters born of unmarried parents the son of one of them was not the nephew of the other. It was also said for the applicability of Indian Succession Act:

No doubt the Act is applicable to others than persons, of exclusively English descent, but these sections are not extended to Hindus, and for my own part I cannot conceive that such an Act as this, which defines certain relations simpliciter, intended any other relations than those flowing from lawful wedlock. If the argument were conceded, a bastard would share equally with a son-i.e. a legitimate son, he being the only son known to our law-and this result appears to me wholly repugnant and impossible.[5]

There is no difference between agnates and cognates.

Testamentary succession:

The Act expressly discriminates illegitimate children in matters of testamentary succession when it says that if the intention of the testator to give the property to the illegitimate children is not clearly mentioned in the will, then the term child will refer only to legitimate child.

Conclusion:

The Indian Society is evolving in nature but we are still ruled by archaic laws which need to be changed. Transformation is needed particularly in statutory laws so that stigma attached to illegitimacy in personal laws can be removed. We need to adopt a rational and liberal outlook towards illegitimate child, giving them an equal status as given to a legitimate child. We cannot put blame on child for the acts of their parents.  Denial of inheritance rights to adopted and illegitimate children causes social and economic deprivations.[6]

There have been amendments in various statutes governing personal laws, which were made in accordance with the need of changing society. We need more laws that are not discriminatory towards illegitimate children. Section 125 of Code of Criminal Procedure and Section 112 of Evidence Act are secular piece of legislation which apply to all the religions equally. Section 125 of Code of Criminal Procedure gives rights to every person regardless of religion to claim maintenance. Section 112 says that birth during marriage is a conclusive proof of legitimacy of child.

Personal laws still govern the nature of rights and obligations of individual in a family. The Indian Succession Act a codified piece of legislation also does not provide any equality between legitimate and illegitimate.  We need a Uniform Civil Code, governing all aspects of personal law from property to inheritance to maintenance etc. that ensures that rights of illegitimate children are at par with that of   legitimate children.  In Jane Antony v. V.M. Siyath[7], the Kerala High Court said that all the children both legitimate and illegitimate are entitled to the maintenance under Section 125 of the Code of Criminal Procedure, there is no reason or logic in denying them their right of inheritance to succeed to the properties of their parents in cases of intestacy. It also suggested the Central Government to enact a legislation to confer right of succession on all illegitimate children irrespective of their religion in tune with Section 125 of the Code of Criminal Procedure[8] which is for all purposes a secular legislation.

The Law Commission of India in its 110th Report had already suggested for two alternatives in the year 1985 which are (i) addition of a suitable Explanation to section 37 so as to include illegitimate children within the expression “child” or (ii) inserting a definition of expression “child” as including illegitimate children in s. 2, the general definition section, to settle the point in regard to all provisions of the Act. But the IS(A) Bill, 1994 incorporating these suggestions lapsed.

As Supreme Court noted, in case of ABC v. State of Delhi[9], that our Directive Principles of State Policy envisioned a Uniform Civil Code but it remains an unaddressed constitutional expectation. We cannot let personal laws that are discriminatory not only against illegitimate child, but also against females (widows, mothers, daughters, wives), govern our society. The patriarchal nature of  our society  was responsible for developmental of such laws at that time but today when we are aiming for gender equality, we should look at the bigger picture.

 

 

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

[2] Chacko Daniel v. Daniel Joshua, 1952 KLT 595

[3] ABC v. The State of Delhi (2015) 10 SCC 1

[4] [1906] 30 Bom. 500

[5] Emma Agnes Smith vs Thomas Massey (1906) 8 BOMLR 322

[6]Archana Mishra, Adopted And Illegitimate Child Under Indian Christian Law: Revisiting Inheritance Rights, (2015) 29 Australian Journal of Family Law 43. Available at SSRN: http://ssrn.com/abstract=2551287

[7] 2008 (4) KLT 1002

[8] Savitaben Somabhai Bhatia v. State of Gujarat (2005) 3 SCC 636, word children n section 125 of CrPC includes illegitimate children,  Dukhtar Jahan v. Mohd. Farooq (1987) 1 SCC 624, Sumitra Devi v. Bhikan Chaudhary (1985) 1 SCC 637(an illegitimate child who is a minor is entitled to maintanence)

[9] (2015) 10 SCC1

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