Author: Akshay Pathak
National Law Institute University (NLIU)
The legitimacy of Hindu child after the enactment of The Hindu Marriage act,1955, is completely depends upon the validity of marriage according to the provision enshrined under the Act. Prior to the enactment of The Hindu Marriage Act,1955, there was no restriction as to the second marriage of Hindu residing in India but as the Hindu Marriage Act came into the existence in 1956, it makes the Bigamy illegal for a Hindu according to the section 17.
LEGITIMATE AND ILLEGITIMATE CHILD: - Under the Hindu law, if a marriage fulfilled the conditions laid down in section 5 and section 7 of the Hindu Marriage act,1955, it is considered as a valid marriage and a child borne out of it would be legitimate child. The legitimacy of child may come in question in following cases: -
1. Either he is borne out of void Hindu marriage
2. Or voidable Hindu marriage
3. Borne out of extramarital or premarital affair
The legitimacy of children can be annulled when the marriage of the Hindu couples contravenes any principles laid down under sec.7 and sec.5 of the Hindu Marriage Act,1956. Further the children came in existence from void marriage or through extra-marital and pre-marital affairs are illegitimate from very start.
RIGHTS OF ILLEGITIMATE CHILD: -The rights of illegitimate child can be divided in three broad categories: -
1. Maintenance
2. guardianship
3. Inheritance
4. Coparcenary Rights and Joint family property
MAINTENANCE
Under the Hindu maintenance and adoption act,1956, Hindu is bound to maintain his illegitimate son till the age of majority while an illegitimate daughter has a right to seek maintenance from her parents until she gets married. Under this act the obligation to maintain illegitimate children is upon both father as well as mother.
However, the right to seek maintenance cease to exist the time children converted to another religion although an illegitimate children may still avail the right to maintenance under code of criminal procedure. Further in case of death of the parents of illegitimate children, the inheritors of the deceased parents have the obligation to maintain son till the age of majority and daughter until she gets married.
GUARDIANSHIP
Generally, the guardianship of legitimate children lies with the father and thereafter the mother but rules related to the guardianship of illegitimate children are completely opposite of that of legitimate children. The guardianship of illegitimate children lies with the mother and after her, the father however no can claim the right of guardian the time he converted to other religion or renounced the world becoming hermit or an ascetic—the time he or she converted, their right to guardianship cease to exist. Further, after the marriage of illegitimate daughter, the guardianship transfer to her husband.
INHERITANCE
Under the Hindu marriage act,1955, it is clearly stated that the illegitimate children can only have a right to claim property made by father himself throughout his lifetime. The illegitimate children do not have any coparcenary rights in joint family property so illegitimate does not have right to claim ancestral property inherited by his father. Further, the mother of illegitimate children can inherit the property form his son while on the other hand the father does not have any say in illegitimate son’s property. The illegitimate brothers and sisters of said person also have the right to inherit property in case of his death but same is not true for his legitimate brothers and sisters.
COPARCENARY RIGHTS AND JOIN FMAILY PROPERTY
Unlike legitimate children, the illegitimate son does not have any coparcenary rights in Hindu join family. Prior to the enactment of the Hindu marriage act,1956, the rules relating to coparcenary rights were used to governed by Mitakshara law which, although, provided coparcenary rights to son of second wife but same was altered by sec.5(1) of the Hindu marriage act, which makes the second marriage void and children borne out of it illegitimate.
So, an illegitimate son has only right to ask maintenance from his father however if father decided, during his lifetime, can still provide a part of ancestral property which he inherited to his illegitimate son, which may equal to that of his legitimate son.
JUDICARY ON ILLEGIMATE CHILDREN:-
The Indian courts had given landmark judgements on illegitimacy of children: -
In the case of Revansiddappa v. Mallokarjun supreme court noted that “the marriage between two individuals may not be sanctioned by law but it must not violate the rights of children borne out of it, the relationship between parents and children should be viewed independently of the relationship between husband and wife. A child borne out of invalid wedlock must be entitle to all rights as it might be the case if the marriage was valid.”
In Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh & Anr The case's facts include that the raja passed away and left three widows, an illegitimate son, a legitimate daughter, and a few acres of property behind. When the legal son passed away after a while, the question was “whether the illegitimate son would inherit the raja's property or not. The privy council acknowledged that an illegitimate son has the right to inherit the raja's property by the virtue of survivorship”
In Shanta Ram v. Smti Darubai court noted that “a child borne out of invalid marriage would be deemed legitimate, irrespective of decree of nullity however, he would not have any rights of succession or any coparcenary rights in joint family ownership.”
In Neelama v. Sarojama(2006) court noted that “illegitimate children have only entitle to the self-acquired property of their father—but have no right in ancestral property of the father.”
In Satyendra Kumar & ORS v. Raj Nath Dubey & ORS (2016) court noted that “illegitimate children can succeed to personal share of their father in ancestral property— claim to personal share of their father in ancestral property can only be made after the death of the father not before that.”
CONCLUSION
Sons who were born into void marriages or from pre-marital or extra-marital affair has a right to inherit their father's self-acquired property, as well as their father's personal part in the inheritance of any ancestral property, regardless of whether or not their parents are divorced. Succeed indicates that they do not have the right to bring a lawsuit against their father and that they can only succeed to the property that their father had after his death. They are unable to initiate a lawsuit against their father.
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