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FINAL DRAFT

FAMILY LAW
THE RIGHTS OF ILLEGITIMATE CHILDREN UNDER
DIFFERENT PERSONAL LAWS

Submitted by Supervised By

Ayushi Agrawal Dr. Anju Tyagi

20BALLB15

National Law University,


Delhi (India)
2016

1
Declaration

I hereby declare that the work reported in this project report entitled “The Rights of Illegitimate
Children under different Personal Laws” submitted at National Law University, Delhi is an
outcome of my work carried out under the supervision of Dr. Anju Tyagi. I have duly
acknowledged all the sources from which the ideas and extracts have been taken. To the best of
my understanding, the project is free from any plagiarism issue.

Ayushi Agrawal

National Law University, Delhi

November 7, 2016

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LIST OF CASE LAWS

 CIT V. P.M. Paily Pillai 1972 KLT 24 (Ker).


 Chacko Daniel V. Daniel Joshua 1952 KLT 595 (Ker).
 Dimple Gupta V. Rajiv Gupta 2002 Cr.L.J. 493.
 Gaurav Jain V. Union of India (1997) 8 SCC 114.
 Goutum Kundu V. State of West Bengal (1993) 3 SCC 418.
 Habibur Rehman Chowdhury V. Altaf Ali Chowdhury (1921) 23 Bom. L.R. 636.
 Jinia Keotin V. Kumar Sitaram Manjhi (2003)1 SCC 730.
 K.M. Adam V. Gopala Krishnan AIR 1974 Mad. 232.
 Mathew Varghese V. Rosamma Varghese 2003 KLT 646 (Ker).
 Mongal Chandra V. Dhirendra AIR 1976 Cal 129.
 Nafees Ara V. Asif Sadat Ali Khan 1963 Cri. L.J. 394.
 Neelamma V. Sarojamma (2006) 9 SCC 612.
 Philomena Mendoza v. Dara Nusserwanji AIR 1943 Bom 338.
 P.V. Susheela V. Komalavally 2000 DMC 376.
 Revanasiddappa and Anr. V. Mallikarjun and Ors (2011) 11 SCC 1.
 Sukha V. Ninni AIR 1965 Raj. 345.

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Table of Contents

Title Page No.

Synopsis 5-7

Chapter 1- Illegitimacy as a Concept 8-10

Chapter 2- Illegitimacy under 11-16


different personal laws
Chapter 3- Judiciary on Illegitimacy 17-19

Conclusion 20-21

Bibliography 22-23

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SYNOPSIS

INTRODUCTION
A marriage is considered to be forming the foundation of the Indian society and affects the status
of the children born of it.1 The children born out of a valid marriage are considered to be
legitimate and have all the rights and privileges which they acquire as legal heirs of their parents.
However, the illegitimate children suffer legal discrimination in all spheres of life. Illegitimate
means “something which is not in accordance with law.” An illegitimate child is a child who is
born of parents not lawfully married to each other. Since time immemorial, there is a strong
social stigma attached to an illegitimate child. Not just the society but even the law has
discriminated against them in terms of right of maintenance, inheritance, joint family property
and guardianship. The law has always failed to provide the same legal rights to the illegitimate
children as enjoyed by the legitimate ones.2 In India, the law of legitimacy depends on the
personal laws of the person concerned.3 Almost all the personal laws in India are religion based4
and therefore, even under law, the children born out of such illegitimate relationship are not
given equal legal rights as provided to a legal child. There is a constant societal rejection that
adds to the hardship of such children.

The Courts, in the past had been really asympathetic to the demands of illegitimate children of
maintenance. The Bombay High Court in the case of Philomena Mendoza v. Dara Nusserwanji
has taken a stricter stance and held that it is merely a moral obligation or a duty of a father to
maintain his illegitimate children.5 However, in the recent years, the courts have been liberal
towards the rights of illegitimate children. In the case of Revanasiddappa and Anr. V.
Mallikarjun and Ors, the court held that Children born out of illegitimate relationships are
entitled to all the rights that are given to children born out of valid marriages.6

With the emergence of people who are rational and who do not consider illegitimacy as a social
stigma, the laws are being amended accordingly. The purpose of this research paper is to study

1
H.K. SAHARAY, LAW OF MARRIAGE AND DIVORCE 125 (5th ed. 2007).
2
ASHUTOSH MOOKERJEE, MARRIAGE SEPARATION AND DIVORCE 228 (4th ed. 2009).
3
Id.p.155.
4
DR. S.Y. MYNEMI, FAMILY LAW IN INDIA 68 (1st ed. 2009).
5
AIR 1943 Bom 338.
6
(2011) 11 SCC 1.

5
the right of maintenance of illegitimate children under different personal laws and analyse
various Supreme Court judgments on the same.

LITERATURE REVIEW

The Researcher has formed different arguments for the research project with the help of the
following literature.

H.K. Saharay’s Law of Marriage and Divorce helps the researcher to understand the concept
of children born out of a valid marriage as opposed to the illegitimate children. Mookerjee’s
Marriage, Separation and Divorce assists the researcher in forming a thorough understanding
of the rights of illegitimate children under different personal laws. The case of Philomena
Mendoza v. Dara Nusserwanji7 puts forth the condition of illegitimate children in the past. It
helps the researcher to understand the change in the mindset of judiciary in regard to
illegitimacy. At the same time, the case of Revanasiddappa and Anr. V. Mallikarjun and
Ors8 presents before the liberal approach adopted by the judiciary in the recent times.

After going through the following literature, the researcher is able to form the argument that the
conditions of illegitimate children are better in the present scenario as compared to the past.
However, there is a long way to go. All the personal laws shall aim at providing equal rights to
the illegitimate children.

HYPOTHESIS

The rights of illegitimate children are discriminatory but the judiciary has adopted a liberal
approach towards the illegitimate children and granted them the legal rights.

RESEARCH QUESTION
 Whether the illegitimate children enjoy the right of maintenance under different personal
laws?
 Whether the judiciary has adopted a liberal approach towards the illegitimate children?
Analyse it through various landmark judgments on the same.

7
Supra Note 5.
8
Supra note 6.

6
METHODOLOGY
The researcher has employed doctrinal method of research to conduct the study. The research
study includes some secondary sources like articles, books, journals, and literary sources which
are to be found in library and sources like e-databases from the internet pertaining to the topic.
Also, the books written by different authors on personal laws are referred to under the secondary
sources. The researcher has also taken help from various scholarly articles and journals online.
With these mentioned sources, the researcher tries to find out the answer to the problem raised
above.

SCOPE

The scope of the Research Paper is to study the right of maintenance of illegitimate children
under different personal laws. It aims to explore the changing laws relating to illegitimacy under
different personal laws. The paper also tries to serve the objective of analyzing various Supreme
Court Judgments on illegitimacy to understand the attitude of judiciary on the same.

CHAPTERISATION

The Research paper has been divided into four Chapters.

Chapter 1- Illegitimacy as a Concept

Chapter 2- Illegitimacy under Different Personal Laws

Chapter 3- Judiciary on Illegitimacy

And finally, Conclusion and Suggestions.

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CHAPTER 1

ILLEGTIMACY AS A CONCEPT

Every child in this world requires special care and protection in order to grow into a responsible
individual. There are some children who are more vulnerable than others due to their socio-
economic, cultural and other conditions. Hence, they need more care and protection than others.
One such category of children is the children born out of parents whose relationship is not legally
and socially recognized and therefore such children suffer from legal and social discrimination
from all over the society. These children are termed as ‘Illegitimate’.9 The status of a child i.e.
whether legitimate or illegitimate has serious consequences under all the societies in the world.
The society has always discriminated against the illegitimate children and they have never
enjoyed equal status with the legitimate children.10 Even the law has discriminated against them
and not gave them the rights that the legitimate children are given. Illegitimacy has always
carried a strong social stigma. The personal laws in India are religion based and therefore the
illegitimate children are treated in a different manner under different personal laws and given
selective rights.11

One of the reasons for not giving recognition to illegitimate children would be to discourage
illicit relations. Though promiscuity may be tolerated in certain societies, it is nowhere
commended. Also, the children born outside the legal wedlock are discriminated and not given
equal rights because it is considered that giving such children equal rights and recognition would
undermine the rights of children born in a lawful matrimonial relationship. There is a growing
trend of couples entering into a live-in relationship as a substitute for a formal marriage.12 And
such lone term commitments often result in a child birth. But there are serious consequences in
terms of legitimate status of the child born out of such not legally recognized relationship. The
children are thereby termed as illegitimate and they have to face a lot of social stigma all around

9
Kingsley Davis, Illegitimacy and the Social Structure, 45, AMERICAN JOURNAL OF SOCIOLOGY 217, 215-233
(1939).
10
Ibid.
11
Supra Note 4.
12
Status of Children born in live-in Relationships (January 15, 2014),
http://www.legalservicesindia.com/article/article/status-of-children-born-in-live-in-relationships-1622-1.html (Last
Visited on October 7, 2016).

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themselves which force them to lead a stigmatized life.13 However, children have no role to play
in their own birth and hence they must not be discriminated and given the punishment for the
acts of their parents. They must have all the rights that are given to a child born in a valid
wedlock. Premarital sexual relationship between two individuals is considered to be sin in almost
all the societies and hence the children born out of such sinful act are also kept in the state of
sin.14 Section 112 of the Indian evidence Act 1872 provides that a child is legitimate only if he is
born during the continuance of a valid marriage between his father and the mother. It works on
the presumption of legitimacy if the child is born during a legal wedlock.15

Children form the most fundamental unit of a modern day progressive society and their fate is
often decided by the kind of social relations that surround them. Couples that enter into
procreation of a child without entering into a legally recognized marriage decide the placement
of newly born individual in the society. A Legitimate child is one who is born out of parents
legally married to each other. The word ‘legitimacy’ is derived from the Latin word ‘legitimare’
which means to make lawful. The Indian law is opposed to declaring a child as illegitimate. An
Illegitimate child is one who is born of the parents who are not wedded to each other or born at a
time within the wedlock when procreation by the husband was not possible because of congenital
or acquired mal formations or illness.16 In a landmark case of Mongal Chandra V. Dhirendra,17
the court recognized an illegitimate son as the son of a permanent and exclusive mistress of a
particular person. Despite National and International conventions prohibiting any kind of
discrimination against children and imposing a sense of responsibility on parents, state and
society to protect the rights of children in every possible manner, the children who are born out
of an illegitimate relation between a male and a female are exposed to enormous social,
enormous and legal deprivation.18

13
Ibid.
14
LAKSHMI SHANTHAKUMAR, LEGITIMACY OF BARSTARDISATION LAW- A CRITICAL OVERVIEW (2011).
15
Kusum, Rights and Status of Illegitimate Children, INDIAN LAW INSTITUE (Vol. 40, 1998),
http://14.139.60.114:8080/jspui/bitstream/123456789/17851/1/020_Rights%20and%20Status%20of%20Illegitimate
%20Children%20(295-310).pdf (Last Visited on October 9, 2016).
16
Dr. Vijay Pal Khanagwal, Legal Aspects of Legitimacy in Indian Perspective: An Overview, J PUNJAB ACAD
FORENSIC MED TOXICAL, 114 (2012).
17
AIR 1976 Cal 129.
18
Supra Note 14.

9
In Family law, Maintenance is often used as a synonym for spousal support or alimony. Hindu
sages have clearly laid down that maintenance of certain persons is a personal obligation which
must be discharged. Manu says, “The aged parents, a virtuous wife and an infant child must be
maintained even by doing hundred misdeeds”.19 The concept of Maintenance in India is covered
both under Section 125 of Criminal Procedure Code, 1973 and the personal laws. Maintenance
may be granted to dependent children, parents and legally wedded wives, including but not
limited to a divorced spouse, mistress, illegitimate children, etc. The right of maintenance given
to an illegitimate child differs in different personal laws. Where some laws recognize the rights
of illegitimate children, some laws do not even give recognition to such children. Therefore, the
personal laws, in this context of conferring the tights on illegitimate children, greatly differ. As a
result, the illegitimate children have to suffer for no mistake of their own.20

19
Supra Note 16.
20
Supra Note 15.

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CHAPTER 2

ILLEGITIMACY UNDER DIFFERENT PERSONAL LAWS

THE RGHT OF MAINTENANCE TO ILLEGITIMATE CHILDREN

The Criminal procedure Code 1973 provides that every child who is not able to maintain itself is
entitled to maintenance, irrespective of religion and caste.21 The crucial provision that provides
for maintenance of children, specifically illegitimate children is contained in Section 125 of
Criminal procedure Code. Apart from this secular legislation that grants rights to Illegitimate
Children, there are provisions under the personal laws that provides for maintenance of children.
Some of them are discussed below:

In India, the law of legitimacy depends on the personal laws of the person concerned.

HINDU LAW

Under the Hindu Law, if a marriage fulfils all the conditions laid down under Section 7 and
Section 5 of the Hindu Marriage Act, 1955, it is considered to be a valid marriage. Therefore,
children born out of such a marriage are considered to be legitimate children. If the conditions
laid down under Section 5 are not satisfied, the resultant marriages are considered to be void or
voidable under Section 11 and Section 12. Also, if the marriage is not performed according to the
ceremonies under Section 7, then the marriage is not a valid marriage. Children born out of such
marriages are considered to be illegitimate. Under Hindu Law, following children fall within the
category of illegitimate children:

 Children born of void marriage


 Children born of Voidable/annulled marriages
 Children born of illicit relationship
 Children born through concubinage and
 Children born of a marriage which is not performed with valid ceremonies.22

21
Section 125, Criminal Procedure Code.
22
Supra Note 15.

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The old law of Mitakshara and Dayabhaga governed each and every aspect of Hindu personal
issues till the Hindu personal law was codified. This old law gave recognition to the rights of an
illegitimate son to be maintained out of his father’s coparcenary property and his self acquired
property. The father was under an obligation to provide maintenance to his illegitimate child
until he attains the age of puberty. However, no such right was conferred upon an illegitimate
daughter. She had no remedy under the Hindu law and had to proceed under the provisions of
Criminal Procedure Code in order to claim maintenance which she could do only during the
lifetime of her father and that right also terminated on his death.23 When the Hindu personal law
got codified, the Hindu Marriage Act 1955 and the Hindu Adoptions and Maintenance Act 1956
made it compulsory for a Hindu to maintain his illegitimate children, be it a son or a daughter till
they attain the age of puberty or cease to be a Hindu by conversion to another religion. The right
to maintenance does not extend beyond the age of minority. Section 16 of the Hindu Marriage
Act of 1955 provides that the Children born out of Void or Voidable marriage will be considered
as legitimate and given all rights as given to legitimate children. 24 Under Section 20 of the Hindu
Adoptions and Maintenance Act 1956, minor children-whether they are legitimate or
illegitimate, are entitled to be maintained by their father or mother. Also, under the Hindu
Adoptions and Maintenance Act, it is provided that in case of maintenance of illegitimate child
of a deceased, the son will be maintained till the age of puberty and the daughter till she marries
by the heirs of the deceased from the property inherited by them. The amendment of 1976 in
Section 16 of the Hindu Marriage Act provides that even an illegitimate child will be deemed as
legitimate for all practical purpose including succession to the family properties. But the
jurisprudence of the Courts has been different as held in the case of Neelamma V. Sarojamma
where the plaintiff, the wife along with her two children filed a case for the share in the property
of the defendant, the husband. The trial court held that the plaintiff is not the legally married wife
of the defendant and as such the children are also illegitimate and hence not entitled to any share
in the property of the defendant. However, the High Court reversed the decision and held that
the Section 16 of the Hindu marriage Act 1955 enacts a legal fiction deeming the illegitimate
children as legitimate for all practical purposes including succession to properties of their parents

23
J. Duncan M. Derrett, Illegitimates: A test for Modern Hindu Family, 81 JOURNAL OF THE AMERICAN LAW
SOCIETY, 251-261 (1961).
24
SECTION 16, HINDU MARRIAGE ACT 1955.

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but illegitimate children can only claim their share in self acquired properties of their father and
not in the ancestral properties.25

In K.M. Adam V. Gopala Krishnan26, the court conferred an obligation upon a Muslim man to
maintain his illegitimate child born to a Hindu woman. The court held that the provisions of
Hindu Adoptions and Maintenance Act 1956 will apply as one of the parents is a Hindu and
therefore the father will be bound to maintain his illegitimate child.

However, in a very recent judgment of the Supreme Court, in the case of Revanasiddappa V.
Mallikarjun27, where the wife with her two children had filed a suit for partition and separate
possession against the Husband, the defendant, for their 1/4th share each with respect to ancestral
property which had been given to him by way of grant. The main question that was posed before
the court was whether the children born out of void marriages were coparceners and entitle to the
ancestral properties. The first wife contended that the second marriage entered into with the
husband was void and hence the children illegitimate and thereby they do not have any right in
the ancestral property of the husband. It was held that a child born out of an illegitimate
relationship is entitled to all rights in the property whether self-acquired or ancestral. The bench
of Justce G.S. Singhvi and Justice A.K. Ganguly said the Hindu Marriage Act intends to bring
about social reforms and conferrement of social recognition on the illegitimate children is the
obvious and clear purpose of Section 16. Section 16 nowhere specifically mentions about the
kind of property. It deals with all property of the parents whether self-acquired or ancestral. It
aims to remove that social stigma from the heads of illegitimate children and treat them on par
with the legitimate children.

MUSLIM LAW

Under the Muslim Law, the parentage is only acknowledged in the real mother and father of a
child if the child is born in a legal matrimonial relationship and the Islamic law gives no
recognition to an illegitimate child born out of an illicit relationship. Muslim law tightly holds
the concept of ‘filius Nullis’. It only confers legitimacy on a legitimate son and does not provide
for any status to an illegitimate child. Under Muslim law, an illegitimate child is considered ‘a

25
(2006) 9 SCC 612.
26
AIR 1974 Mad. 232.
27
(2011) 86 ALR 450.

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child of nobody’.28 It is only the conception during lawful marital relationship which determines
the legitimacy of a child. The Islamic law does not confer legitimacy on the child born out of
illicit or illegitimate relationship. In case of legitimate children, the maintenance is rest upon the
father. The father is bound to duly maintain the son until he attains the age of puberty and the
daughter until she gets married. However, under the Islamic law, in case of an illegitimate child,
a father is not bound to maintain such a child. It recognizes the concept of ‘filius Nullis’. Though
the Hanafis recognize the nurture of the child till he attains the age of seven, but the Shias don
not even provide this right to the illegitimate children. The Shia school of law says that a child
born outside the legal wedlock is neither related to the mother nor to the father. It considers such
a child to be purely illegitimate.29

However, though under the Muslim law, a father is not bound to maintain his illegitimate
children, the Criminal Procedure Code makes it compulsory for such a father to pay maintenance
to the child. The Courts have expressed a similar view and in the case of Sukha V. Ninni30, The
case is that the appellant and the respondent were Muslims. A female child Jamila was born to
them which were an illegitimate child. The respondent made an application under Section 488
CrPC for the maintenance of Jamila. The Court held that though the Muslim law does not make
any express provision that provides the right of maintenance to the illegitimate child, still that
will not defeat the provision of Criminal Procedure Code that provides a right of maintenance to
the illegitimate children. It also held that such children born out of misfortunes should not be
rendered homeless and be given the legal rights.

CHRISTIAN LAW

The Christian Law of inheritance is essentially governed by the Indian Succession Act of 1925.
The illegitimate children are not recognized within the ambit of this act and it gives
acknowledgment only to the sons and daughters born out of a valid and legal marriage. The
term’ child’ under the act does not include an illegitimate child. 31An indepth study of the Indian

28
LAKSHMI SHANTHAKUMAR, LEGITIMACY OF BARSTARDISATION LAW- A CRITICAL OVERVIEW (2011).
29
Status of Children born in live-in Relationships (January 15, 2014),
http://www.legalservicesindia.com/article/article/status-of-children-born-in-live-in-relationships-1622-1.html (Last
Visited on October 7, 2016).

30
AIR 1965 Raj. 345.
31
Kingsley Davis, Illegitimacy and the Social Structure, 45, AMERICAN JOURNAL OF SOCIOLOGY 217, 215-233

14
Succession Act reveals that it contemplates and only speaks of those relations which the law
recognizes and gives no recognition to the child born out of an illicit or illegitimate relationship.
The personal law of Christian does not speak of providing any kind of recognition to an
illegitimate child. It does not confer any kind of obligation on the parents to provide maintenance
to their illegitimate child. However, the secular of the Criminal Procedure Code, 1973 has made
it compulsory for the parents to provide maintenance to their illegitimate children. The Criminal
Procedure Code confers an obligation upon the parents to recognize and support their illegitimate
child by paying them a fixed monthly amount as fixed by the Magistrate. This is governed by
Section 125 of Criminal Procedure Code.32

The main question that is posed before us is Whether a Christian Father bound to maintain his
minor child, legitimate or illegitimate? This question was considered by the court in the case of
CIT V. P.M. Paily Pillai33, and it was held that a father is under no obligation to provide
maintenance to his minor child, legitimate or illegitimate. It was relied on an earlier case of
Chacko Daniel V. Daniel Joshua.34 However, this question was again raised in Mathew Varghese
V. Rosamma Varghese35. In this case, the couple was married to each other and the woman
delivered a child. Subsequently, they separated. The woman filed an application for the
maintenance of the child which was contested by the husband on the ground that the woman had
illicit relations with other men and as such the child is not his and thereby he is not liable to pay
the maintenance. The Court held that wherein it was held that a child due to his physical and
mental maturity requires special care and legal protection and therefore, a father is under an
obligation to maintain his minor child, legitimate or illegitimate. Therefore though the personal
law of Christian does not make it obligatory for the parents to maintain their illegitimate child,
the secular law of Criminal Procedure Code comes as a ray of hope to those children as it gives
them the right of maintenance. This ensures that the ‘always neglected illegitimate children’ are
not left isolated and unhelped. They are provided with a respectable and dignified life and not
driven to crime and immorality in order to sustain their livelihood.

32
M.R. MALIIK, MAINTENANCE-LAW AND PRACTICE 320 (1st ed. 2012).
33
1972 KLT 24 (Ker).
34
1952 KLT 595 (Ker).
35
2003 KLT 646 (Ker).

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Both the Muslim law and the Christian law recognize the concept of ‘Filius Nullius’. They
consider an illegitimate child to be a child of nobody and give no acknowledgment to him. Under
both these personal laws, legitimacy is measured only through a legal wedlock. Only the
relations arising from such wedlock is given due recognition and rights. However, such children
are provided a right of maintenance under section 125 of Criminal Procedure Code 1973.

PARSI LAW

A marriage is void under the Parsi Law if it is not performed in accordance to rules relating to
monogamy and prohibited degrees. The law does not speak about the status of children born out
of such marriages or the illegitimate children. There is no provision as such that deals with the
rights of such children. The Parsi law only recognizes the legitimate children and as such confers
all the rights on the legitimate children only. Legitimacy is measured only through a legal
wedlock.36 The children born out of illegitimate relationships cannot claim any maintenance
under the personal law of the Parsis. However, such illegitimate children can claim the right of
maintenance under the provisions of Criminal Procedure Code. Their claim of maintenance is
governed by Section 125 of CrPC.

Hence, it becomes quite clear that only Hindu law in express provisions grant recognition of
rights to the illegitimate children. The right of maintenance of children under other personal laws
is governed by the secular legislation of Criminal procedure Code.

36
Kusum, Rights and Status of Illegitimate Children, INDIAN LAW INSTITUE (Vol. 40, 1998),
http://14.139.60.114:8080/jspui/bitstream/123456789/17851/1/020_Rights%20and%20Status%20of%20Illegitimate
%20Children%20(295-310).pdf (Last Visited on October 9, 2016).

16
CHAPTER 3

JUDICIARY ON ILLEGTIMACY

The courts have given some landmark judgments in the field of illegitimacy.

The Indian Judiciary using its power to attain the ends of social justice in a landmark case of
Dimple Gupta V. Rajiv Gupta, the Supreme Court held that even a child born through an illicit
relationship is entitled to maintenance under Section 125 of the Criminal Procedure Code. This
provision provides for maintenance of minor children, whether legitimate or illegitimate till they
attain the age of majority.37 In this case, Dimple Gupta filed an application under section 125 of
the Code of Criminal Procedure through her mother Narain Dassi claiming from the respondent
Rajiv Gupta alleging that he was her father as she had been born out of a relationship between
him and her mother.

In Revanasiddappa V. Mallikarjun, the wife with her two children had filed a suit for partition
and separate possession against the Husband, the defendant, for their 1/4th share each with
respect to ancestral property which had been given to him by way of grant. The main question
that was posed before the court was whether the children born out of void marriages were
coparceners and entitle to the ancestral properties? The first wife contended that the second
marriage entered into with the husband was void and hence the children illegitimate and thereby
they do not have any right in the ancestral property of the husband. The Supreme Court of India
held that the constitutional values of equality of status, opportunity and individual dignity are
enshrined in the preamble of our Constitution. It held that the birth of the child has to be viewed
independently of the relationship of the parents. The relationship of the parents may not be
regulated by the law but the children born out of such relationships must be recognized by the
law. The children born are innocent and must not suffer for no mistake of their own. They are
entitled to all the rights which are given to the children of valid marriages. 38 The Supreme Court
in Gaurav Jain V. Union of India, held that Children have the right to dignity, care, equality and
protection by the society so that they can be given a respectable life like any other child without

37
2002 Cr.L.J. 493.
38
(2011) 11 SCC 1.

17
prefixing a social stigma on such children.39 Apart from the secular law of Criminal Procedure
Code 1973 that provides maintenance to the illegitimate children, the personal laws also have
provisions for the same. Under the Hindu Adoptions and Maintenance Act 1956, a child, whether
legitimate or illegitimate is entitled to be maintained by his parents.40 The court imposed an
obligation on a Muslim father to maintain his illegitimate child born to a Hindu woman in the
case of K.M. Adam V. Gopala Krishnan.41 Since one of the parents was a Hindu, hence the child
was taken to be a Hindu and thereby the provisions of the Hindu Adoptions and Maintenance Act
1956 were applied and it was held that the Muslim father was entitled to maintain the illegitimate
child. The Muslim law does not make any specific provision that grants maintenance to an
illegitimate child. In the case of Habibur Rehman Chowdhury V. Altaf Ali Chowdhury, the court
said that the Muslim law does not recognize any process by which the status of legitimacy may
be conferred upon an illegitimate child.42 And thereby, in the case of Nafees Ara V. Asif Sadat
Ali Khan, where the petition was filed under section 488 of Criminal Procedure Code of 1898
claiming right of maintenance of illegitimate child, the court held that even if the personal law of
the Muslim Law does not make any special provision for the rights of Illegitimate children, the
provisions of the secular and uniform legislation of Criminal Procedure Code will apply to the
Muslim Citizens as to any other citizen of the country.43

Under the law there is a presumption of the legitimacy of the child born during the wedlock. This
presumption is statutorily recognized under Section 112 of the Indian Evidence Act 1872. This
Section lays down a rule that a child born during a legal wedlock is a legitimate child unless it is
shown that there was non-access between the parties at the relevant time.44 In a judgment of
Goutum Kundu V. State of West Bengal, an application was filed by the wife for the maintenance
of herself and her child. The father of the child requested for blood group test in order to
determine the paternity. However, the Court rejected the request and held that under Section 112

39
(1997) 8 SCC 114.
40
Neena Haridas, No Child is Illegitimate, THE INDIAN EXPRESS (May 3, 2014),
http://indianexpress.com/article/opinion/columns/no-child-is-illegitimate/ (Last Visited on October 9, 2016).
41
AIR 1974 Mad.232.
42
(1921) 23 Bom. L.R. 636.
43
1963 Cri. L.J. 394.
44
Supra Note 39.

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of the Evidence Act, the birth of a child during the subsistence of a legal wedlock is a proof of
the legitimacy of the child.45

However, there are times when the Supreme Court has acted in a very asympathetic manner
towards the rights of illegitimate children. In Jinia Keotin V. Kumar Sitaram Manjhi, the
Supreme Court held that a child which is born out of a valid wedlock only will be considered as
legitimate. Any other child would be considered as an illegitimate child. 46 In the case of
Philomena Mendoza V. Dara Nusserwanji, the petitioner alleges that she is the illegitimate child
of the defendant and as such is entitled to maintenance. The Bombay high Court took a strict
stance and held that it is only a moral obligation of the father to maintain the illegitimate child
and the law does as such confers no obligation or compulsion on a father to provide maintenance
to an illegitimate child.47 The plight of such children is imaginable after the pronouncement of
such shocking judicial pronouncements. As upheld by the Kerala High Court in the case of P.V.
Susheela V. Komalavally, the denial of right of maintenance to the illegitimate children can be
very well challenged under Article 32 of the Constitution of India for violation of fundamental
rights guaranteed by the Constitution, such as Article 21- right to life and personal liberty and the
denial of such a right can lead to violation of right to live with dignity. 48 This also violates the
right under Article 14 which provides for equality before law. A recent Supreme Court Judgment
has come in 2014 that said that no child could be termed as illegitimate. This is a landmark
judgment of the Supreme Court of India wherein it held that to give due recognition to a child,
the relationship need not be within the confines of marriage.49

The Courts have been asympathetic towards the illegitimate children in the past. But gradually
the laws are changing and so is the mindset of the Judiciary. The Indian Judiciary has given some
landmark judgments recognizing the rights of illegitimate children and treating them at par with
the legitimate children. At some instances, it has failed to grant the illegitimate children their
rights, however, at some instances it has emerged as a great savior to the lives of such children.
Well, the Courts Judiciary has long way to go in its aim of seeking justice to the Illegitimate
children.
45
(1993) 3 SCC 418.
46
(2003)1 SCC 730.
47
AIR 1943 Bom. 338.
48
2000 DMC 376.
49
Supra Note 39.

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CONCLUSION AND SUGGESTIONS

The number of illegitimate children is increasing in alarming proportions because of the kind of
illegitimate relationships prevailing in our society. The Researcher began writing this paper with
the conviction that the rights of illegitimate children are discriminatory but the judiciary has
adopted a liberal approach towards the illegitimate children and granted them the legal rights.
Chapter 1 of the research paper explains the concept of illegitimacy. After an interpretative
study of the following chapter, the researcher is of the view that Illegitimacy has always carried a
strong social stigma and the illegitimate children have always been discriminated against.
Despite there being National and international Conventions prohibiting any kind of
discrimination against children, an illegitimate child is exposed to enormous social, emotional
and legal deprivation. Not just the society but even the law has discriminated against them in
terms of right of maintenance, inheritance, joint family property and guardianship. The research
paper deals specifically with the right of maintenance of illegitimate children and the concept of
Maintenance in India is covered both under Section 125 of Criminal Procedure Code, 1973 and
the personal laws.

Chapter 2 of the Research paper has dealt with the right of maintenance of illegitimate children
under different personal laws. The law of legitimacy depends on the personal laws of the person
concerned and almost all the personal laws in India are religion based and therefore the
illegitimate children are treated in a different manner under different personal laws and given
selective rights. The interpretative study done in this area brings out that the right of maintenance
given to an illegitimate child differs in different personal laws. Where some laws recognize the
rights of illegitimate children, some laws do not even give recognition to such children. The
Hindu law in express provisions grants recognition of rights to the illegitimate children under
Section 16 of the Hindu Marriage Act 1955 and Section 20 of the Hindu Adoption and
Maintenance Act 1956. The right of maintenance of children under other personal laws is
governed by the secular legislation of Criminal procedure Code under Section 125. The cases
like Neelamma V. Sarojamma, Revanasiddappa V. Mallikarjun and K.M. Adam V. Gopala
Krishnan bring out the sympathetic approach of the Judiciary where they gave recognition to the
rights of the illegitimate children. Therefore, the personal laws, in this context of conferring the

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tights on illegitimate children, greatly differ. As a result, the illegitimate children have to suffer
for no mistake of their own.

Chapter 3 of the Research paper deals with the stance of Judiciary on Illegitimacy. After having
studied a number of case laws and the stance of Judiciary on Illegitimacy, it will not be incorrect
to say that the Judiciary has now and then upheld the rights of illegitimate children through its
judgments such as the judgment in the case of Revanasiddappa V. Mallikarjun.50 Wherever the
personal laws have failed to give recognition to the illegitimate children, the Judiciary has guided
to have recourse to the secular legislation of Criminal Procedure Code 1973 as in the case of
Sukha V. Ninni. Though in the past, the Courts have been asympathetic towards the illegitimate
children but gradually the laws are changing and so is the mindset of the Judiciary. The Indian
Judiciary has given some landmark judgments recognizing the rights of illegitimate children and
treating them at par with the legitimate children. The laws in the society are also being amended
accordingly as the time and the situation demands.

Hence, after a thorough study on the rights of illegitimate children, the researcher is of the view
that there is a need for reform in the existing legal framework to remove the discriminatory
behaviour against the illegitimate children provided under different personal laws. There is a
need for a uniform law to govern the rights of illegitimate children and the illegitimacy must not
be governed by personal laws of the individual concerned. A specific legislation must be enacted
which essentially treats illegitimate children equally regardless of their status. And the
Government must ensure that this implemented effectively. 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. The non-
governmental organizations should lobby for the reforms of these discriminatory laws. They
should also carry out legal literacy campaigns to educate the people, especially women, about
their rights because once the mothers of illegitimate children are educated about their rights and
legal procedures; it will be possible for them to assert their rights and the rights of their children.
Clear laws should be made and amendments to ambiguous terms in present laws must be made to
grant clarity on the status and rights of children born in a live in relationship. This will ensure
uniformity and help establish emotional, mental and physical security for such a child.
50
(2011) 11 SCC 1.

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BIBLIOGRAPHY
BOOKS
 ASHUTOSH MOOKERJEE, MARRIAGE SEPARATION AND DIVORCE 228 (4th ed. 2009).
 DR. S.Y. MYNEMI, FAMILY LAW IN INDIA 68 (1st ed. 2009).
 H.K. SAHARAY, LAW OF MARRIAGE AND DIVORCE 125 (5th ed. 2007).
 M.R. MALIIK, MAINTENANCE-LAW AND PRACTICE 320 (1st ed. 2012).
LEGISLATIONS

 CRIMINAL PROCEDURE CODE 1973.


 HINDU MARRIAGE ACT 1955.
 HINDU ADOPTIONS AND MAINTENANCE ACT 1956.
ONLINE WEBSITES

 MANUPATRA
 SCC ONLINE
 WESTLAW INDIA
ARTICLES AND JOURNALS

 Dr. Vijay Pal Khanagwal, Legal Aspects of Legitimacy in Indian Perspective: An


Overview, J PUNJAB ACAD FORENSIC MED TOXICAL, 114 (2012).
 J. Duncan M. Derrett, Illegitimates: A test for Modern Hindu Family, 81 JOURNAL OF THE
AMERICAN LAW
 Kusum, Rights and Status of Illegitimate Children, INDIAN LAW INSTITUE (Vol. 40, 1998),
http://14.139.60.114:8080/jspui/bitstream/123456789/17851/1/020_Rights%20and%20St
atus%20of%20Illegitimate%20Children%20(295-310).pdf (Last Visited on October 9,
2016).
 Kingsley Davis, Illegitimacy and the Social Structure, 45, AMERICAN JOURNAL OF
SOCIOLOGY 217, 215-233
 LAKSHMI SHANTHAKUMAR, LEGITIMACY OF BARSTARDISATION LAW- A CRITICAL
OVERVIEW (2011).
 Neena Haridas, No Child is Illegitimate, THE INDIAN EXPRESS (May 3, 2014),
http://indianexpress.com/article/opinion/columns/no-child-is-illegitimate/ (Last Visited
on October 9, 2016).

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 Status of Children born in live-in Relationships (January 15, 2014),
http://www.legalservicesindia.com/article/article/status-of-children-born-in-live-in-
relationships-1622-1.html (Last Visited on October 7, 2016).

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