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Legitimacy of Children under Hindu Law

Section 16 protects the interests of children begotten or conceived before the


decree is made in case of void and voidable marriages under Sections 11 and 12
of the Act. The children of such marriages have been declared to be legitimate
under this section.

This section has been recasted by the Marriage Laws (Amendment) Act, 1976
with intent to remove difficulties in its interpretation. Prior to the above
amendment, the language of the section showed that a decree of nullity of
marriage was necessary under Sections 11 and 12, before a child begotten or
conceived before that decree could be given the status of legitimate child.

Where a decree was not granted under Section 11 of the Act, the provisions of
Section 16 of the Act did not confer legitimacy on the child and if a third party
successfully challenged the validity of the marriage in other proceedings on the
ground that it was void, the children of such marriage would still be illegitimate.

In Thrumurthi Ranayammal v. Thrumurthi Muthamal, the Madras High Court


observed, the wordings of Section 16 of the Hindu Marriage Act, in so far as it
is relevant to a marriage void under Section 11, leads to an anomalous and
startling position which could not have been contemplated by the legislature.
The position and status of a child of void marriage should obviously be the
same whether the marriage is declared a nullity under Section 11 or otherwise.

Though the language of the section is more appropriate to voidable marriage, it


has been applied to void marriages as well, presumably with the object of
ensuring that where a marriage is in fact solemnised but was void for any of the
reasons mentioned, in Section 11, the children of such marriages should not be
bastardised whether a decree of nullity is passed or not. But this obvious
intention of the legislature has not been carried out.

The section is so plain and unambiguous and it would be stretching the


language beyond permissible limits to say that children born of void marriages
are legitimate even in cases where a decree of nullity had not been granted. It is
not possible for the court to construe the same in a different manner having in
mind the presumed intention of the legislature even if it appears to be obvious.
This casualness which the court cannot reach for no cannon of construction
would permit court to supply what is clearly a lacuna in the statute and it is for
the legislature to set right the matter by suitable amendment of the section.

The lacuna has now been removed by the Marriage laws (Amendment) Act,
1976. The section now provides:

(1) Notwithstanding that a marriage is null and void under Section 11, and child
of such marriage who would have been legitimate if the marriage had been
valid, shall be legitimate, whether such child is born before or after the
commencement of the Marriage Laws (Amendment) Act, 1976, and whether or
not a decree of nullity is granted in respect of the marriage under this Act and
whether or not the marriage is held to be void otherwise than on petition under
this Act.

(2) Where a decree is granted in respect of a voidable marriage under Section


12, 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.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as


conferring upon any child of marriage which is null and void or which is
annulled by a decree of nullity under Section 12, any rights in or to the property
of any person, other than the parents, in any case where, but for the barring
other Act, such child would have been incapable of passing or acquiring any
such rights by reason of his not being the legitimate child of his parents.

Now, under the section any child of a void marriage, who had been legitimate if
the marriage had been valid, shall be legitimate, whether or not a decree of
nullity of marriage is granted in respect of that marriage under this Act and
whether or not the marriage is held to be void otherwise than on petition under
this Act.

As regards the legitimacy of the children of voidable marriages, the position is


the same as it was prior to the Marriage Laws (Amendment) Act, 1976. Where a
decree of nullity is granted with respect to a voidable marriage under Section
12, the position is clear. Such a child be deemed to be a legitimate child.
But where the validity of marriage is challenged by either party and decree of
nullity is not granted, it would be a valid marriage and the children of the parties
to such marriages would undoubtedly be legitimate.

There is a distinction between the above two positions. Where the marriage is
annulled at the instance of either party, the children born of such marriage are
by the operation of this section to be deemed to be the legitimate children for all
intents and purposes except that by virtue of this proviso to the section they
cannot claim any right in or over property of any person other than the parents.

But if the decree of nullity is refused or it is not opted by either party, the
children of the parties to marriage would be still legitimate and they would not
be subjected to the limitations of clause (3) of the Act, i.e., they would be
entitled to inherit the property of their parents as well as of any collaterals of the
parents or descendants of the parents either:

A voidable marriage can only be challenged at the instance of either party to


the marriage and cannot be challenged after the death of one of the parties to the
same. So if the marriage though voidable was not challenged during the life
time of the spouse, it could not be challenged thereafter and the issue of such
marriage would be legitimate and no question would arise of the applicability of
the rule laid down in the section.

Children of void marriage shall be regarded as legitimate whether such children


had been born before or after the amendment of Section 16 under the Marriage
Laws (Amendment) Act, 1976.

Sub-section 3 of Section 16 of the Act lays down that the children born of void
and voidable marriage, who have acquired the status of legitimate children by
virtue of the provisions of sub-sections (1) and (2) of this section, cannot claim
to succeed to persons other than the parents. They have no right to succeed to
the collaterals of the parents or ascendants of the parents either.

In Shanta Ram v. Smt. Dargubai, the Bombay High Court observed that the
children of void marriages would be deemed legitimate, irrespective of the
decree of nullity although they would not acquire the right to succession to the
same extent as is available to the children of valid marriage.
But the legitimacy conferred upon such children under Section 16(3) entitles
them to claim right only in the property of their parents which must be separate
property of the parents not the coparcenary property in which father is allotted
only one share. Such children would not be treated as coparceners and they
would not acquire the right of partition.

In Bhogadi Kannababu & others v. Vaggina Pydamma & others, the Supreme
Court held that the children of void marriage would be deemed legitimate
because Section 16 of the Act deals with legitimacy of children of void and
voidable marriage, and sub-section (1) of Section 16 of the Act clearly says that
under these circumstances the illegal children are entitled to inherit the property
with first wife.

Where a child was found to be at the time of marriage with the contact of a
person other than the husband and the husband later on obtains a decree of
nullity on this account under Section 12 of the Act, such child cannot be given
the benefit of Section 16 of the Act. Only the child concerned and born of void
and voidable marriages with the contact of the husband could be deemed to be
legitimate child of such parents.

The constitutionality of Section 16 of the Act which confers status of legitimacy


to the illegitimate children has been upheld by the Supreme Court in P.E.K.
Kalliani Amma v. K. Devi. The Court observed that the words notwithstanding
that a marriage is null and void under Section 11 employed in Section 16(1)
indicate undoubtedly the following:

(a) Section 16(1) stands delinked from Section 11.

(b) Mischief of the vice which was the basis of unconstitutionality of


unamended Section 16 has been effectively removed by the amendment.

(c) Section 16(1) now stands on its own strength and operates independently of
other sections with the result that is constitutionally valid as it does not
discriminate between illegitimate children in similar circumstance and classifies
them as one group for conferment of legitimacy. Section 16 in its present form,
is, therefore not ultra vires.
Illegitimacy under Hindu Law

Illegitimate means something which is contrary to


law. Illegitimate children as understood are those children
who are not born out of a lawful wedlock. Not just the society
but even the law has discriminated against them in many
ways. However, with the emergence of a group of people in
the society who are rational and liberal in their outlook and
do not consider illegitimacy as a stigma, the laws are also
being amended accordingly.

Introduction
There are no illegitimate children only illegitimate
parents.
Leon R. Yankwich
Under all societies in the world, the status of a child i.e.
whether it is born legitimate or illegitimate has great
consequence. Both in the contemporary society and in the
historical society there is classification of children as
legitimate and illegitimate.
Since time immemorial, there is a social stigma surrounding a
child who is not born to legally wedded/married parents. The
illegitimate children never enjoyed equal status along with the
legitimate children. The society always discriminated the
illegitimate children in many ways. Not only the society
discriminated them, even law has discriminated them. Law
has not given the illegitimate children the same legal rights as
the legitimate ones are given. Under almost all the personal
laws the right to inheritance of the legitimate children and the
illegitimate children are not the similar. Illegitimacy carried a
strong social stigma among all religions practised in the
world.[i]
Illegitimacy as defined by the Oxford Dictionary means, (Of
a child) born of parents not lawfully married to each other.
This means illegitimacy means when the parents of a child are
not lawfully wedded, the child will be considered illegitimate.
Premarital sexual relationship and extramarital sexual
relationship are considered to be a sin in almost all the
societies. So the resultant child of such offensive relationship
is also kept in a state of sin. It is considered illegitimate.
Many religions also view premarital or extramarital sexual
relationship as an offensive relationship. Almost all the
personal laws in India are religion-based and so even under
law, the children born out of such offensive relationship are
not given equal status with the children born out of a lawful
wedlock.[ii]

Illegitimacy as a concept
In medieval Wales, a bastard was defined simply as a child
not acknowledged by its father. All children, whether born in
or out of wedlock, which were acknowledged by the father,
enjoyed the same legal rights, including the right to share in
the fathers estate. After Englands conquest of Wales, English
law came to apply in Wales.
Under English law, a bastard was unable to be an heir to real
property, in contrast to the situation under civil law, and could
not be legitimized by the subsequent marriage of father to his
mother. There was one exception: when his father
subsequently married his mother, and an older illegitimate son
(a bastard eign) took possession of his fathers lands after
his death, he would pass the land on to his own heirs on his
death, as if his possession of the land had been retroactively
converted into true ownership. A younger non-bastard brother
(a mulier puisn) would have no claim to the land.
The Legitimacy Act 1926 of England and Wales legitimized
the birth of a child if the parents subsequently married each
other, provided that they had not been married to someone
else in the meantime. The Legitimacy Act 1959 extended the
legitimization even if the parents had married others in the
meantime and to putative marriages which the parents
incorrectly believed were valid. Neither the 1926 nor 1959
Acts changed the laws of Succession to the British throne.
The Family Law Reform Act 1969 (c. 46) allowed a bastard to
inherit on the intestacy of his parents. In canon and in civil
law, the offspring of putative marriages have also been
considered legitimate.[iii]
The courts in India decide1 a child to be legitimate or
illegitimate depending on the following criteria:
1. A child born within lawful wedlock is a legitimate child
2. At the time of the birth of the child, if the father and
mother of the child are legally married to each other, the
child is a legitimate child. A child born outside the lawful
wedlock is an illegitimate child.
At the time of the birth of the child, if the father and mother
of the child are not legally married to each other, the child is
an illegitimate child.

Illegitimacy under Hindu Law


Under the Hindu Law, if a marriage fulfils all the conditions
laid down in Section 7 and Section 5 of the Hindu Marriage
Act, 195518 it is considered to be a valid marriage. Children
born of such a valid marriage are alone considered legitimate.
If the conditions lay down under Section 5 of the Act, are not
satisfied, the resultant marriage may be void or voidable
marriage as per Sections 11 and 12 of the Act.
Void marriage Section 11 of the Hindu Marriage Act, 195519
defines a void marriage. It says, if the marriage is in
contravention of any of the conditions specified in clauses (i),
(iv) and (v) of Section 520 it shall be null and void. The
children born of such a marriage are considered to be
illegitimate children. [iv]
Voidable marriage Section 12 of the Hindu Marriage Act,
195521 lays down the grounds of voidable marriages. If the
marriage is annulled under anyone of the grounds under
Section 12, then the children born of such a marriage are
considered to be illegitimate children.
Apart from the above, if proper ceremonies are not performed
at the time of marriage as per Section 7 of the Hindu Marriage
Act, the resultant marriage is not a valid marriage. Children
born of such marriage will also fall under the category of
illegitimate children. Hence, children who will fall under the
category of the illegitimate children under Hindu Law may be
summed up as follows:
1. Children born of void marriage;
2. Children born of annulled/voidable marriage;
3. Children born of illicit relationship;
4. Children born through concubinage; and
5. Children born of a marriage which is not valid for want
of proper ceremonies.
In essence, under Hindu law the rule of legitimacy is
dependent upon the marriage. The social status of children is
determined by the act of their parents. If they have entered
into a valid marriage, the children are legitimate; but if the
parents committed a folly and entered recklessly into an
invalid marriage or a child is conceived even without entering
into a relationship of marriage the resultant innocent child are
labelled as illegitimate. The innocent child without having any
hold or control over the act of its parents has to suffer the
consequence of it.[v]

Rights of an Illegitimate Child in the Past


The Hindu law relating to illegitimate children can be
discussed under the following four heads:
1. Maintenance
2. Inheritance
3. Joint Family Property and Partition
4. Guardianship
Maintenance:
Prior to the coming into force of the Hindu Adoptions and
Maintenance Act, 1956, an illegitimate son of a Hindu was
entitled to maintenance out of his fathers 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.
Among the Shudras, illegitimate sons were entitled to
maintenance if they could not inherit or get a share on
partition. If, however, the mother was not a Hindu, this right
could not be enforced under the Hindu law. The illegitimate
son could, in that case, proceed against the putative father
under the Code of Criminal Procedure.
Illegitimate daughters had formerly no remedy under Hindu
law. They were, however, entitled to maintenance under the
Code of Criminal Procedure, which right was enforceable
only during the lifetime of the putative father and terminated
on his death.
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, 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. A
mother also can inherit the property of her illegitimate child.
The father has no right to inherit the property of his
illegitimate child.
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 form a coparcenary with him, so that during the
life-time of his father, the right of the illegitimate son is only
limited to maintenance. But 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.
Guardianship:
A mother had a preferential right of guardianship. The mother
is considered the natural guardian of an illegitimate child. The
father had no right to the custody of the illegitimate son
during the letters minority, and ordinarily, the mother of an
illegitimate child had the right to the custody of the child
during the years of nurture.

Rights of an Illegitimate Child in the


present scenario
The Hindu law relating to illegitimate children and the
changes that are done in the following years are also discussed
under the four heads:
1. Maintenance
2. Inheritance
3. Joint Family Property and Partition
4. Guardianship
Maintenance:
Under the Hindu Adoptions and Maintenance Act, 1956, a
Hindu is bound, during his or her life-time, to maintain his or
her illegitimate children. The obligation to maintain
illegitimate children is now upon both, the father as well as
the mother. Not only the illegitimate son, but also an
illegitimate daughter, is entitled to be maintained by her father
and mother.
The right to be maintained, however, extends only upto the
period of minority. An illegitimate child is not entitled to be
maintained by his or her parents after attaining majority. Such
a child will also not be entitled to be maintained if he or she
has ceased to be a Hindu by conversion to another religion.
Moreover, under the Hindu Adoptions and Maintenance Act,
an illegitimate son of a deceased Hindu, so long as he is a
minor, and an illegitimate daughter of a deceased Hindu, so
long as she remains unmarried, are entitled to be maintained
by the heirs of the deceased out of the estate inherited by them
or by the persons who take the estate of the deceased.
Such a son or daughter, however, will not be entitled to
maintenance under the said Act if he or she has ceased to be a
Hindu by conversion to another religion.
An illegitimate child who has ceased to be a Hindu can,
however, apply for maintenance from his or her father under
the Code of Criminal Procedure.
Inheritance:
After the passing of the Hindu Succession Act, 1956, an
illegitimate child of a Shudra cannot inherit the property of his
or her father. Formerly, an illegitimate son of a Shudra if he
was a dasiputra, was entitled to succeed to his father. Now,
under the Act, he cannot.
Joint Family Property and Partition:
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.
Guardianship:
The mother is considered the natural guardian. Now, if both
the parents of an illegitimate child are Hindus, Buddhists,
Jains or Sikhs by religion, or if one of the parents of such
child is a Hindu, Buddhist, Jain or Sikh by religion, and such
child is brought up as a member of the tribe, community,
group or family to which such parent belongs or belonged,
then the Hindu Minority and Guardianship Act, 1956, applies
to such a child, and under section 6 of the Act, in the case of
an illegitimate boy or illegitimate unmarried girl, the mother
is the natural guardian, and after her, the father is the natural
guardian, and in the case of a married girl, the husband is the
natural guardian.
But under that Act, such a guardian is not entitled to act as
such, if he or she had ceased to be Hindu or has completely
and finally renounced the world by becoming a hermit or an
ascetic.[vi]
Judiciary on Illegitimacy
The court has given some landmark judgements in the field of
illegitimacy.
Some of such decisions are:
The Supreme Court of India in Revanasiddappa v.
Mallikarjun [vii]opined that: the constitutional values
enshrined in the Preamble of our Constitution which focuses
on the concept of equality of status and opportunity and also
on individual dignity. The Court has to remember that
relationship between the parents may not be sanctioned by
law but the birth of a child in such relationship has to be
viewed independently of the relationship of the parents.[viii]
A child born in such relationship is innocent and is entitled to
all the rights which are given to other children born in valid
marriage.
In Jinia Keotin v. Kumar Sitaram Manjhi[ix], , the Supreme
Court has said:
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.
In Kamulammal (deceased) represented by Kattari Nagaya
Kamarajendra Ramasami Pandiya Naicker v. T.B.K.
Visvanathaswami Naicker (deceased) & Ors[x]., the Privy
Council held when a Sudra had died leaving behind an
illegitimate son, a daughter, his wife and certain collateral
agnates, both the illegitimate son and his wife would be
entitled to an equal share in his property. The illegitimate son
would be entitled to one-half of what he would be entitled had
he been a legitimate issue. An illegitimate child of a Sudra
born from a slave or a permanently kept concubine is entitled
to share in his fathers property, along with the legitimate
children.
In Raja Jogendra Bhupati Hurri Chundun Mahapatra v.
Nityanund Mansingh & Anr[xi]., the facts were that the Raja
was a Sudra and died leaving behind a legitimate son, an
illegitimate son and a legitimate daughter and three widows.
The legitimate son had died and the issue was whether the
illegitimate son could succeed to the property of the Raja. The
Privy Council held that the illegitimate son was entitled to
succeed to the Raja by virtue of survivorship.
In Thrumurthi Ranayammal v. Thrumurthi Muthamal, the
Madras High Court observed, the wordings of Section 16 of
the Hindu Marriage Act, in so far as it is relevant to a
marriage void under Section 11, leads to an anomalous and
startling position which could not have been contemplated by
the legislature. The position and status of a child of void
marriage should obviously be the same whether the marriage
is declared a nullity under Section 11 or otherwise.
In Shanta Ram v. Smt. Dargubai, the Bombay High Court
observed that the children of void marriages would be deemed
legitimate, irrespective of the decree of nullity although they
would not acquire the right to succession to the same extent as
is available to the children of valid marriage.

Conclusion
The Indian Society is a metaphysical society and so, it is
going through a transformation stage which consists of two
broad categories of people with two distinct ideologies. One
of the groups believes in the orthodox methods of Hindu
religion where having an illegitimate child is a taboo and
being one is a bigger stigma.
The other group in the society consists of people who are
rational and liberal in their outlook and do not consider
illegitimacy as a stigma. They do not blame an illegitimate
child for his/her existence instead blames the irresponsible
couple. The laws in the society are also being amended
accordingly as the time and the situation demands.
There is a need to be more liberal towards the illegitimate
children and the laws should also be amended in such a way
that they have the best interest of all the people at heart .
[i] http://www.supremecourtcases.com/index2.php?
option=com_content&itemid=5&do_pdf=1&id=22276

[ii] Legitimacy of Barstardisation Law- A Critical Overview, by Lakshmi Shanthakumar

[iii] http://en.wikipedia.org/wiki/Legitimacy_(law)#History

[iv] Hindu Marriage Act, 1955


[v]Legitimacy of Barstardisation Law- A Critical Overview, by Lakshmi Shanthakumar
available at

http://www.supremecourtcases.com/index2.php?
option=com_content&itemid=5&do_pdf=1&id=22276

[vi] http://www.shareyouressays.com/117169/comprehensive-essay-on-the-illegitimate-
children-under-hindu-law

[vii] (2011) 11 SCC 1

[viii] http://www.legalblog.in/2011/04/right-to-property-of-illegitimate-child.html

[ix] (2003) 1 SCC 730, 733

[x] AIR 1923 PC 8

[xi] 1889-90 Indian Appeals 128