child rights in India

In this blogpost, Nimisha Srivastava, Student, Gujrat National Law University,  writes about the rights of an illegitimate child under the Hindu Law.

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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[1]. Therefore, the illegitimacy criteria followed in above three religions will be the same as followed in Hindu law.[2] 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.[3] 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.[4]

Valid marriage under Hindu Marriage Act, 1955

Under the Hindu Marriage Act, marriage is void[5] under following circumstances:

  1. If the marriage is a bigamous marriage.[6]
  2. If the persons who are married are sapindas of each other.[7]
  3. If the persons who are married are within prohibited degrees of relationship.[8]

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[9] at the option of one party:

  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
  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, if the parties under Section 12 are seeking a decree of divorce, then the question of illegitimacy does not appear as divorce can be granted only in cases of valid marriages.

Originally the Hindu Marriage Act provided that a child born out of a marriage declared void or annulled by the court will have the same status as that of marriage dissolved by decree of divorce. But the courts have interpreted Section 16 of the Hindu Marriage Act differently; the section was applicable only if a decree of nullity was passed by a court; in the absence of such a decree, the children remained illegitimate in the case of void marriages.[10]  This lacuna was however removed after the Marriage Laws (Amendment) Act, 1976, which amended Section 16. Now, the children of all void and voidable marriages shall be deemed to legitimate. However, the children born out of void or voidable marriages cannot inherit the property of their relatives.

 If the marriage of child’s mother with her previous husband is not legally dissolved, he won’t be considered illegitimate if born out of second marriage. Declaration of Validity of marriage on a petition of either party declare marriage as nullity under a decree which was pre-condition under Section 12 of Act, 1955 is done away with[11]

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, during the lifetime of the father.

Post codification, in accordance with Hindu Marriage Act and Hindu Adoptions and Maintenance Act, 1956, a Hindu is bound during his or her lifetime to maintain his or her illegitimate children, till s/he attains the age of majority or has ceased to be a Hindu. Moreover, the Hindu Adoptions and Maintenance Act provides that in the case of an illegitimate child of a Hindu, who is deceased, the son is entitled to maintenance till minority and daughter till she remains unmarried by the heirs of the deceased from the estate inherited by them.

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[12], 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(uterine blood). A mother also can inherit the property of her illegitimate child. The father has no right to inherit the property of his illegitimate child.

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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 can be a coparcenary in a Joint Hindu Family.  He is also not entitled to enforce partition against the family. 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.

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.

Though the amendment of 1976 in Section 16 now enacts a legal fiction deeming the illegitimate children as legitimate for all practical purposes including succession to their family properties[13] but the court’s jurisprudence until now has been : Child born of void or voidable marriage can only claim share in self-acquired properties of parents not in ancestral property.[14] Children born out of live-in relationship do not have an inheritance right over the ancestral property.[15] In S PS Balasubramanyam vs Sruttayan[16], the SC had said, “If a man and woman are living under the same roof and cohabiting for a number of years, there will be presumption under Section 114 of the Evidence Act, that they live as husband and wife and the children born to them will not be illegitimate.” The crucial pre-conditions for a child born from live-in relationship to be not treated as illegitimate are that the parents must have lived under one roof and co-habited for a considerably long time for society to recognize them as husband and wife. It must not be a “walk in and walk out” relationship, as the court pointed out in its 2010 judgment in Madan Mohan Singh vs. Rajni Kant.[17]

 However in a very recent judgment by Supreme Court, Revanasiddappa v. Mallikarjun,[18] it was held that ‘Child born in illegitimate relationship/Void marriage is innocent and is entitled to all rights to property to which his parents are entitled whether ancestral or self-acquired property.’ A Bench of Justices G.S. Singhvi and A.K. Ganguly, hearing an appeal by Revanasiddappa, differed with earlier judgments in interpreting Section 16 (3) of the HMA that “such children are only entitled to the property of their parents and not of any other relation.” Underlining the need for a liberal interpretation of Section 16 (3), the Bench said: “with changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. The concept of legitimacy stems from social consensus, in the shaping of which various social groups play a vital role.”

Quoting an earlier judgment, the Bench said: “the HMA intends to bring about social reforms, and conferment of social status of legitimacy on innocent children is the obvious purpose of Section 16. This is a law to advance the socially beneficial purpose of removing the stigma of illegitimacy on such children who are as innocent as any other children.”[19]

Since there was no restriction imposed in Section 16 (3), such children would have a right to whatever “becomes the property of their parents whether self-acquired or ancestral,” the Bench said.

Guardianship

A mother has a preferential right of guardianship, as per Hindu Minority and Guardianship Act, 1956.[20] 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.[21]

 

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References:

[1] Section 2(1)(b) of the Hindu Marriage Act, 1955

[2] Section 2

Explanation.- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be,-

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist Jaina or Sikh by religion and who is brought up as a member of tribe, community, group or family to which such parents belongs or belonged;

[3] http://14.139.60.114:8080/jspui/bitstream/123456789/684/16/Legitimacy.pdf

[4] Jinia Keotin & Ors vs Kumar Sitaram Manjhi & Ors2003 (3 )ALT4 (SC )

[5] Section 11 : Nullity of marriage and divorce- Void marriages.- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5.

[6] Section 5 (i), Hindu Marriage Act, 1955.

[7] Section 5 (v), Hindu Marriage Act, 1955.

[8] Section 5 (iv), Hindu Marriage Act, 1955.

[9] Section 12, Hindu Marriage Act, 1955.

[10] http://14.139.60.114:8080/jspui/bitstream/123456789/684/16/Legitimacy.pdf

[11] Gurnam Kaur v Puran Singh (1996) 2 SCC 567

[12] Section 3(1)(j), Hindu Succession Act 1956

[13] Smt. Parayankandiyal Eravathkanapravan Kalliani Amma & Ors .Vs. K. Devi & Ors. 1996 AIR 1963

[14] Neelamma v. sarojamma (2006) 9 SCC 612

[15]Jinia Keotin v. Kumar Sitaram Manjhi, 2003 (3 )ALT4 (SC ), Bharath Mata v. R. Vijaya Renganathan (2010) 11 SCC 483

[16] AIR 1992 SC 756

[17](2010) 9 SCC 209.

[18] 2011 (86 ) ALR 450

[19]J. Venkatesan, Illegitimate children entitled to ancestral property: Bench, The Hindu, April 8, 2011

http://www.thehindu.com/news/national/illegitimate-children-entitled-to-ancestral-property-bench/article1609543.ece

[20] Section 6(b), Hindu Minority and Guardianship Act, 1956.

[21] ABC v. State of Delhi (NCT), (2015) 10 SCC 1.

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