Right of Maintenance To An Illegitimate Child: A Brief Review Ofindian Law

ECONSPEAK: A Journal of Advances in Management IT & Social Sciences,
Vol. 6, Issue 5, May 2016 Impact Factor 4.282 ISSN: ( 2231-4571)

www.skirec.org Email Id: skirec.org@gmail.com
RIGHT OF MAINTENANCE TO AN ILLEGITIMATE CHILD: A BRIEF

REVIEW OFINDIAN LAW
Preeti1, Dr. Nidhi Saxena2

Department of Law
1,2
Shri Venkateshwara University, Gajraula (Amroha), U.P. India
Abstract
In the present post-current world, there is widely less disgrace joined to such terms. All through
history, there is doubtlessly no other word related with such a great amount of contempt as snap
or crime. Early exclusively based law treatment of the same is without regard to the social
consequences of the same. They were not seen in generous society and were surrendered no
rights. As in front of timetable as 1235, the Earls and Barons declined to recognize their ill-
conceived off spring, Rights over property were an unachievable dream, when they were not by
any methods yielded bolster. This treatment of ill-conceived youngsters has been uniform all
through the world, with two or three inconsistencies. It isn't possible to neglect certain
prominent mutts that changed the course of history. Regardless, in spite of these exclusions,
there has reliably been a social disrespect related with ill-conceived youngsters. Society has
constantly prohibited such youngsters, who through no fault of their own were managed as
unsuitable among various people from society. In powerful countries like the United States of
America society is generally receptive to such Children and the laws constrained in like manner
ensure that their rights are secured. Off late in countries like India there has been a modification
in the individual laws to merge this headway, the most recent being the amendment of Section 16
of the Hindu Marriage Act and a couple of lawful decisions. This paper attempts to track the
support laws to ill-conceived youngsters in reference to the Indian Law.
1. INTRODUCTION Another inquiry that emerges here is the

thing that for a child endures just because of
Illegitimacy is an idea which implies not vulnerability of the father? Maybe the
permitted by the overall esteems or predominance of the Patriarchal
conceived of parents not wedded to each arrangement of society over Matriarchal
other. An illegitimate child needs to tolerate framework everywhere throughout the world
legitimate and sociological outcomes. is the principle explanation behind the
Things being what they are, who is an torment of the illegitimate child. The
Illegitimate Child? An Illegitimate Child is antiquated Latin announcement, "Mater
one who has the assurance of his/her mother semper certaest" ("The mother is constantly
however no conviction of his/her father.
Page 34
sure", while the father isn't) says it all [1]. characterizes illegitimacy of a child by
saying that the way that any child was
2. LEGITIMATE & ILLEGITIMATE conceived amid the continuation of a
CHILDREN substantial marriage between his mother and
any man, or inside two hundred and eighty
 In India
days after disintegration of marriage and the
The Indian laws had ordered children into mother stayed unmarried, till then might be
two noteworthy sorts i.e. Honest to goodness decisive confirmation that he is the true blue
and Illegitimate. The Legitimate Children child of that man, unless it can be
are the offsprings of substantial relational demonstrated that the gatherings to the
unions while illegitimate children are marriage had no entrance to each other
offsprings of the marriage that is invalid, whenever when he could have been
sporadic or void. There are no issues with generated [3].
respect to the legal rights of a honest to
In the West
goodness child while there do emerge a ton
of issues when rights of an illegitimate child In the custom-based law, legitimacy is the
are concerned [2]. As indicated by this status of a child destined to parents who
section, a child resulting from a void, were legally hitched to each other, and the
substantial or voidable marriage will be child was considered before they got legally
thought to be true blue child of that couple separated. On the other hand, illegitimacy
despite the normality or inconsistency of (or bastardy) is the status of a child
marriage on any ground. conceived outside marriage. Illegitimacy
likewise rises the inquiry with respect to
Perfect and Statutory Legitimacy
right of maintenance of child and mother
A child is said to be impeccably authentic from the putative father. As indicated by
when he/she is conceived out of a Friedmann in his 'Law in a C do is to limit
substantial or a customary marriage. In the the incidents of children conceived past
event of a statutory authentic child he/she is wedlock. In any case, it can, and should,
one who is posterity of an unpredictable or energize the legitimacy of children by
invalid marriage. After the initiation of consequent marriage. Legitimacy is
Section 16 of the Hindu Marriage Act, 1955 currently perceived in number of laws. Be
this idea of Statutory Legitimacy has been that as it may, this is liable to significant
drawn up. constraints. Under Scottish Law, for
example, a child couldn't be legitimated by
3. ILLEGITIMACY ACCORDING TO the consequent marriage of his parents,
INDIAN EVIDENCE ACT, 1872 unless they were allowed to wed at the
season of its origination [4]. In England, the
Section 112 of the Indian Evidence Act position is the same aside from that the
Page 35
applicable date is that of the introduction of of pre-conjugal relationship of his parents.

the child. In the current Report of the Royal Vyasa's significance in the epic is ruler of
Commission on Marriage and Divorce, a Satyavati's kingdom. However, this wa yet it
minority of seven individuals contended was done as King Shantanu and his two
powerfully that this separation demonized children Chitrangad and Vichitravirya had
children for the inadequacies of their parents passed on leaving no successor to the
honored position. As the kingdom was
4. SOCIAL PERSPECTIVE OF AN without successor, Satyavati first requested
ILLEGITIMATE CHILD that Bhishma perform Niyoga (levirate) on
the dowagers of Vichitravirya and
Ancient India
Chitrangad so as to have beneficiary to the
Antiquated India has an exceptionally position of royalty. At the point when
excessively critical view with respect to an Bhishma won't, Satyavati summoned Vyasa.
illegitimate child. The different religious As no real child was left, Illegitimate was
messages in the Hindu folklore are copious summoned as an issue of need! After this
with awesome individuals who were occasion illegitimate beginning was not
illegitimate children and had no fatherly given much significance in the whole epic
certainty".Being.a Let u well known epic it [5]. He was dealt with as a typical genuine
resembles a reflection of the general public child. So would we be able to state that if an
and gives a Hindu's) state of mind towards illegitimate child is found to come in some
life. The epic als mind as it is broadly helpful reason at that point is his
perused (might be in sections) and viewed illegitimacy can be quite recently
over TV. overlooked? Does the general public
recognize the illegitimate children when
Illegitimate children in the general public they never again represent a danger to their
are frequently vilified. The treatment given notoriety? Most likely the transgression of
to the illegitimate children in the epic is youthful age loses its shame when one
characteristic of the way the Hindu society develops old and if the illegitimate child
treats its illegitimate children. There are a turns out to be commendable, the power of
considerable measure of cases of illegitimate illegitimacy goes down.
children who were incredible individuals in
the past and who were abused by the 2. Karna
antiquated society and were dealt with as
Karna was Kunti's illegitimate child and he
items just to serve the true blue.
others conscious treatment that Vyasa got.
1. Vyasa All through the epic Karna was dealt with as
a peon on account of his obscure starting
Vyasa was the illegitimate child of sage point. Right off the bat he was denied of his
Parashara and Satyavati. He was conceived training by Dronacharya as he declined to
Page 36
take him as his student. Furthermore he was ruler Bhima and the RakashasiHidimba. He
constantly reminded in the epic that he was a was an essential character in the epic as he
child of a charioteer and was found in a spared Arjun'slif and the customary harsh
wicker container in a stream. This treatment that one could provide for a child
demonstrates his illegitimate starting point conceived past wedlock. At the point when
was viewed as a major disgrace. Karna at last the fight was over in the epic Lord
slaughtered a cow of a Brahmin mixing up it Krishna comes to Bhima and reveals to him
as a wild creature. The epic is by all that if Ghatotkacha had not surrendered his
accounts betraying Karna. He was reviled by life to spare Arjun then he would have
Parshurama and by the Brahmin. He was murdered him himself with his own
denied of his normal protective layer by the particular hands in light of the fact that as
sun God. He was killed when he was per him example of Bhima regretting over
powerless. Did the epic communicate Ghatotkacha'
something specific this is the thing that
happens to the illegitimate child in the event Rakashasi ladies mourning over the passing
that he tries to a high position? Then again of their spouses or children in the whole epic
Vvasa and Vidura get much better treatment. demonstrates that the creator of
Does it demonstrate that an illegitimate child Mahabharatha had an aloof disposition
of a Brahmin sage can be given better towards the sentiments of these gathering of
treatment however not of others? The individuals [7].
Brahminical effect on the epic is self-
We can see that in the past the illegitimate
evident. Karna gloated of being fit for
children were dealt with as soil and their
murdering Arjuna, despite his twice being
status in the general public was not as
vanquished by Arjuna [6]. He gave away his
amazing and sparkly as that of the honest to
normal covering, despite the fact that he
goodness child. The way that a significant
realized that it might cost him his life. Is it
number of them were dealt with diversely
accurate to say that he was looking for
because of their commitments to the general
grandness in death? Had he gone into the
public demonstrates the way that the general
attitude that at any rate after his demise
public responded distinctively with various
individuals will extol him as an
illegitimate children thus did the child.
extraordinary warrior and contributor? Was
it an endeavor of washing without end the Modern India
shame by blood?
The outlook of the Indian individuals have
3. Ghatotkacha changed a considerable measure and now as
opposed to speculation as far as religious
Another imperative illegitimate child in the
philosophy the Indians have now embraced
epic is Ghatotkacha, the half-position
judiciousness as the new key which could
resulting from the union of the Pandava
Page 37
just open the entryway of a brilliant Indian DuttTiwari and Others has mixed up many
future. The different judgments of the inquiries that stay unanswered in the laws
pinnacle court in our nation with respect to administering Hindu social connections and
cases including rights to an illegitimate child inheritance when the fatherly connection of
have been founded on significant law as Congress pioneer ND Tiwari with
well as on the premise of humankind and RohitShekhar was demonstrated after a
sheer kindheartedness to that child [8]. In DNA test. One critical alteration was done
one such case in the year 2011, the Supreme in 1976 to Section 16 of the Hindu Marriage
Court of India held that the illegitimate Act, 1956, presenting the privilege of
children were not just qualified for an offer inheritance to father's property on children
in the self-gained property of parents yet in resulting from void or voidable relational
addition in tribal property. unions, regardless of whether so pronounced
by a court of law. In any case, marriage, be
A seat of Honorable judges G. S. Singhvi it void or voidable, between a man and lady
and A. K. Ganguly said in a judgment that was a pre-condition to present ideal on their
such children can't be denied of their progeny, regardless of the possibility that
property rights as what was viewed as illegitimate according to society, to lay
illegitimate in the past may not be so in the claim over the father's property.
present evolving society. It additionally said
that the court needs to recall that connection The Supreme Court in JiniaKeotin v. Kumar
between the parents may not be authorized SitaramManjhistated, "Section 16 of the Act,
by the law but rather the birth of the child in while engrafting an administer of fiction in
such a relationship should be seen freely of appointing children, however illegitimate, to
the relationship of parents. be authentic, despite the marriage was void
or voidable, picked additionally to bind its
As per the favorable relationship seat, is application, so far as progression or
honest "and child is qualified for every one inheritance by such children are worried, to
of the rights which are given to other the properties of the parents as it were." This
children conceived of legitimate marriage. implied the illegitimate child could acquire
Ideal to property is not any more essential the property of his father just and had no
however it is a protected right and Article privilege of acquiring the genealogical
300A contains a certification against property of his father which a honest to
hardship of property right spare by specialist goodness child could. If there should arise
of law,” [9] an occurrence of live seeing someone where
there is no marriage between the couple, the
5. ILLEGITIMATE CHILD- RIGHT TO
good Supreme Court of India has said that it
PROPERTY
would assume that the couple in a live-in
The case RohitShekhar v. Narayan relationship would bea couple on the off
Page 38
chance that they had been living under a point too the mother of the child should first
similar rooftop for a drawn out stretch of case marriage or adequately involved
time and on the off chance that they were acquaintance, without her approaching some
referred to in the general public as spouse other man, for the law to give right of
and wife.12 In S. P. S. Balasubramanyam v. inheritance on the posterity to the father's
Sruttayan, the Supreme Court had stated, "If property.
a man and lady are living under a similar
rooftop and living together for various years, On account of Dr. Vijay Mohan Arbat v.
there will be assumption under Section 114 KashiRaoRajaramSawai the Honorable
of the Evidence Act that they live as a Supreme Court said that the Section 125 of
couple and the children destined to them Code of Criminal Procedure presents an
won't be illegitimate." [10] obligation on the child to keep up his
organic father or mother and it doesn't
The condition for the child conceived out of exculpate a wedded girl of this duty. In
a Live-in relationship to be dealt with as a Kamti Devi case16, the Honorable Supreme
true blue child and not as an illegitimate Court stated, "The consequence of a
child is that the live-in couple ought to have certifiable DNA test is said to be
been living respectively as a husband and experimentally exact. In any case, even that
spouse as perceived by the general public isn't sufficient to escape from the
and furthermore living respectively for a decisiveness of Section 112 of the Evidence
drawn out stretch of time. On the off chance Act, for instance, if a couple were living
that these pre-essentials are not there and the respectively amid the season of origination
overthrow relationship' at that point it isn't yet the DNA test uncovered that the child
workable for the illegitimate child for as was not conceived of the spouse, the
expressed him/her by the Honorable convincingness of law would remain un-
Supreme Court in the judgment given by it rebuttable." This may look hard from the
on account of Madan Mohan Singh v. Rajni perspective of the husband who might be
Kant14. Discussing the rights of a child constrained to hold up under the fatherhood
resulting from the stroll in and exit of a child of which he might be honest. In
relationship, where a DNA test demonstrates any case, even in such a case, the law
the organic connection between the child inclines for the pure child from being
and the father however the mother was in a perverted if his mother and her life partner
subsisting legal hitched association with were living respectively amid the season of
another man, the court is yet to answer and origination [11].
take care of this issue. Regardless of the
possibility that one applies the 1976 Subsequently what can be said is that there
alteration to Hindu Marriage Act in the is no uncommon change in the Indian
broadest conceivable abundancy, at that Society yet surely there are changes that are
Page 39
occurring. and his or her matured or sick

parents.
6. LEGAL PERSPECTIVE OF AN
ILLEGITIMATE CHILD 2. An authentic or illegitimate child
may assert maintenance from his or
Section 125 of the Code of Criminal her father or mother insofar as the
Procedure, 1973 child is a minor.
As per Section 125 of the Code of Criminal 3. The commitment of a man to keep
Procedure, 1973 an illegitimate child can get up his or her matured or weak parent
maintenance from his father or mother in the or a little girl who is unmarried
event that he/she can't look after reaches out in so far as the parent or
himself/herself whether wedded or not. the unmarried little girl, by and large,
He/She if has achieved lion's share, and by can't keep up himself or herself out
chance because of any physical or mental of his or her own
variation from the norm or damage can't
look after himself/herself at that point can Section 16 of the Hindu Marriage Act,
likewise get upkeep under this section. This 1955
is the principle section of the Indian Law
that is an aid for illegitimate children (who As per this section of the Hindu Marriage
can't look after himself/herself) as it gives Act, 1956 any child conceived out of a
brisk and honest to goodness upkeep to substantial/customary, invalid/unpredictable,
illegitimate children. void or voidable marriage should be thought
to be the honest to goodness child of that
Section 20 of the Hindu Adoptions and couple. The fact that the marriage was in
Maintenance Act, 1956 repudiation of the laws does not change the
truth that the child was an honest to
As indicated by this section of the Hindu goodness Children of void and voidable
Adoptions and Maintenance Act, 1956 any relational unions”:
Legitimate or illegitimate child can or has
the privilege to maintenance from both of 1. Despite that marriage is invalid
his parents so long they are minor and they and void under section 11, any
are not in a circumstance to look after them. child of such marriage who
The announcement peruses as "Maintenance might have been genuine if the
of children and matured parents” marriage had been substantial,
should be authentic, regardless of
1. Subject to the arrangements of this whether such child is conceived
section a Hindu is bound, amid his earlier or after the beginning of
lifetime, to keep up his or her honest the Marriage Laws (Amendment)
to goodness or illegitimate children
Page 40
Act, 1976 (68 of 1976)*, and TO MAINTENANCE ACCORDING

regardless of whether an TO THE HINDU COPARCENARY
announcement of nullity is CONCEPT
conceded in regard of that
marriage under this Act and On the off chance that we are to talk about
regardless of whether the the rights of a child who is conceived past
marriage is held to be void wedlock or an illegitimate child, at that point
generally than on an appeal to the different choices given by different
under this act. courts in our nation goes to a great deal of
assistance. One such case is the Sujata v.
2. Where a pronouncement of Krishna Prasad where the noteworthy
nullity is allowed in regard of a court watched; that however the children
voidable marriage under section resulting from void relational unions are
12, any child sired or imagined influenced honest to goodness, to section
before the announcement is 16(3) of Hindu Marriage Act disallows the
made, who might have been the conferment of any privilege on them in the
real child of the gatherings to the property of any individual, other than the
marriage if at the date of the parents. Along these lines, the legitimatized
declaration it had been broken up child can't get an offer in the property which
as opposed to being repealed, has a place with coparcenaries of which his
should be considered to be their father is a part and that the legitimatized
true blue child despite the child should prevail to the property on the
announcement of nullity. demise of his parents [12].
Despite anything contained in sub- In Case Of Partition of a Coparcenary

section (1) or sub-section (2) should be Property:
translated as giving upon any child of a
marriage which is invalid and void or There are two broad stem of schools that
which is dissolved by the declaration of deals with the partition right of an
nullity under section 12, any rights in or illegitimate child.
to the property of a man, other than the 
The Mitakshara Law/School and
parents, on the off chance that where, yet
the death of his Act, such child would 
The Madras and Bombay School
have been unequipped for having or
securing any such rights by reason of his As per the Mitakshara School of
not being the genuine child of his Legitimacy, a child conceived as a Perfect
parents. Legitimate child or Statutory Legitimate
child will have the privilege to request
7. ILLEGITIMATE CHILD’S RIGHT parcel of the genealogical/coparcenary
Page 41
property from his father amid his lifetime The Indian Society is a supernatural society
and after his demise to his Grandfather. thus it is experiencing a change organize
which comprises of two general
As indicated by the Madras and Bombay classifications of individuals with two
School, a child conceived as a Perfect unmistakable philosophies. One of the
Legitimate child or Statutory Legitimate gatherings puts stock in the customary
child won't have the privilege to request techniques for Hindu religion where having
segment of the genealogical/coparcenary an illegitimate child is an unthinkable and
property from the Father amid his lifetime. being one is a greater shame. They put stock
Yet, after his passing he can ask to his in virtue of life and the practice of purity.
grandfather. The other gathering in the general public
comprises of individuals who are objective
8. MUSLIM LAWS THAT REGULATE
and liberal in their viewpoint and don't
THE RIGHTS OF AN
consider illegitimacy as a shame. They don't
ILLEGITIMATECHILD
accuse an illegitimate child for his/her
To the extent Muslim marriage is worried, reality rather accuses the flippant couple.
there is no such procedure or strategy by The laws in the general public are
which some honorable status is allowed over additionally being altered as needs be as the
an illegitimate child. In any case, there are time and the circumstance requests. In this
extent of customary Muslim law which manner what we can state is that the Indian
concedes the affirmation of legitimacy, yet it Laws are the identical representation of the
is seen that the possibility of this Indian Society.
administration isn't to legitimize an
REFERENCES
illegitimate child yet for another reason.
Since a Muslim marriage is a contractual 1. Solangel Maldonado, Illegitimate
commitment and not a hallowed obligation, Harm: Law, Stigma, and
consequently it is seen that there are a great Discrimination AgainstNonmarital
deal of occasions of invalid relational Children, 63 Fla.L.Rev 345 (2011).
unions. With this outcome legitimacy of the 2. Vellayappa v. Natarajan, (1931) 58
children resulting from such marriage is for IA 402: 55 Mad
the most part questioned. It is simply 3. Munnuswami v. Swaminathan, AIR
because of this fact that Muslim law 1953 Mad
empowers a father to recognize the paternity 4. Karupapannan v. Bulokam, (1990)
of a child under certain legal circumstances 23 Mad
[13]. 5. Neelamma and Ors. v. Sarojamma
and Ors. (2006) 9 SCC 612,
9. CONCLUSION
BharathaMatha and Anr. v. R.
VijayaRenganathan and Ors., AIR
Page 42
2010 SC 2685
6. ParayankandiyalEravathKanapravan
KallianiAmma (Smt.) and Ors. v. K.
Devi and Ors. (1996)
7. Dr. H.D.Kohli, Muslim Law Cases
& Materials ( Universal Law
Publishing Co., 2012)
8. Mishra Archana, Adopted and
Illegitimate Child Under Indian
Christian Law: Revisiting
Inheritance Rights (January 17,
2015).
9. Law Commission of India, Report on
the Indian Succession Act, 1925
(110th Report, 1985)
10. J. Venkatesan, Illegitimate children
entitled to ancestral property: Bench,
The Hindu, April 8, 2011
11. JiniaKeotin v. Kumar
SitaramManjhi, 2003 (3 )ALT4 (SC
), Bharath Mata v. R.
VijayaRenganathan (2010) 11 SCC
483
12. Smt.
ParayankandiyalEravathkanapravan
KallianiAmma& Ors .Vs. K. Devi &
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13. JiniaKeotin&Orsvs Kumar
SitaramManjhi& Ors2003 (3 )ALT4
(SC )
Page 43

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ECONSPEAK: A Journal of Advances in Management IT & Social Sciences,

Vol. 6, Issue 5, May 2016 Impact Factor 4.282 ISSN: ( 2231-4571)

RIGHT OF MAINTENANCE TO AN ILLEGITIMATE CHILD: A BRIEF

Preeti1, Dr. Nidhi Saxena2

1. INTRODUCTION Another inquiry that emerges here is the

applicable date is that of the introduction of of pre-conjugal relationship of his parents.

occurring. and his or her matured or sick

Act, 1976 (68 of 1976)*, and TO MAINTENANCE ACCORDING

Despite anything contained in sub- In Case Of Partition of a Coparcenary

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