21bcl011 Family Law

GUJARAT NATIONAL LAW UNIVERSITY
SEMESTER VI
FAMILY LAW – II
RIGHTS OF ILLEGITIMATE CHILDREN IN ANCESTRAL PROPERTY:

A COMPARATIVE STUDY
Submitted to: -
MR. SOAHAM BAJPAI
Assistant Professor of Law
Submitted by: -
Khushal Bothra – 21BCL011

Rights of Illegitimate Children in Ancestral Property: A Comparative Study
TABLE OF CONTENTS
I. TABLE OF CONTENTS .............................................................................................................................. 2
II. ACKNOWLEDGEMENT ............................................................................................................................. 4
III. ACADEMIC INTEGRITY FORM.............................................................................................................. 5
IV. ABSTRACT.................................................................................................................................................... 6
V. OBJECTIVES ................................................................................................................................................ 7
VI. RESEARCH METHODOLOGY ................................................................................................................. 8
VII. RESEARCH QUESTIONS........................................................................................................................... 9
VIII. LIMITATIONS OF THE STUDY ............................................................................................................. 10
IX. SIGNIFICANCE OF THE STUDY ............................................................................................................ 11
X. REVIEW OF LITERATURE .................................................................................................................... 12
XI. INTRODUCTION – SETTING THE TONE............................................................................................ 15
XII. ILLEGITIMACY IN THE RELIGION OF HINDUISM........................................................................ 17
XIII. ILLEGITIMACY IN THE RELIGION OF ISLAM ................................................................................ 18
XIV. POSITION OF ILLEGITIMACY IN INDIAN LAW ............................................................................. 20
XV. CONFLUENCE OF CONFUSION UNDER HINDU LAW .................................................................. 21
XVI. POSITION OF INHERITANCE IN MUSLIM LAW............................................................................. 22
XVII. EXAMINING THE APPROACH OF HINDU LAW TOWARDS THE ILLEGITIMATE
CHILDREN’S RIGHTS TO THEIR ANCESTRAL PROPERTY .......................................................... 23
1. Jinia Keotin V. Kumar Sitaram Manjhi, (2003)1 Scc 730

..................................................................................................................... 24
2. Smt. Sarojamma And Ors. V. Smt. Neelamma And Ors., 2005 (5) Karlj 66
..................................................................................................................... 24
3. Bharatha Matha & Anr. V. R. Vijaya Renganathan & Ors., Air 2010 Sc 2685
..................................................................................................................... 25
Semester VI Page | 2
4. Revanasiddappa & Anr V. Mallikarjun & Ors, 2011 (11) Scc 1

..................................................................................................................... 26
XVIII. ANALYSING THE OBJECTIVES BEHIND THE AMENDMENT TO SECTION 16(3) OF THE
HINDU MARRIAGE ACT, 1955 .................................................................................. 28
XIX. PURPOSIVE INTERPRETATION TO THE SECTION 16(3) OF THE HINDU MARRIAGE ACT,
1955 ........................................................................................................................ 29
XX. MUSLIM LAW: RIGHTS OF ILLEGITIMATE CHILDREN IN ANCESTRAL PROPERTY ...... 30
Background .................................................................................................. 30
Legitimacy Under Muslim Law..................................................................... 30
Presumption Of Legitimacy .......................................................................... 31
Status Of Illegitimate Children Under Muslim Law....................................... 31
XXI. CONCLUSION ........................................................................................................................................... 33
XXII. BIBLIOGRAPHY ....................................................................................................................................... 35
ACKNOWLEDGEMENT
We thank all those who directly and indirectly helped in the completion of this research paper.
We are grateful to our supervisor Mr. Soham Bajpai, Assistant Professor of Law, Gujarat
National Law University who entrusted us with this paper and gave us the opportunity to
complete the same in a convenient time frame. In the same vein, we are deeply indebted to our
renowned University for providing us with all the required sources to complete this paper
without any hassles. Without the help of the remote access and other online sources, this project
would not attain the current quality. Lastly, we are also thankful to all fellow students whose
competition and productive ideas, have provided an impetus to the progress of our paper.
ACADEMIC INTEGRITY FORM
Student Name: Harshit Upadhyay, Sanigdh Budhia and Aditya Sharma
Registrati0n N0. and Semester: 20BAL031, 20BAL080 & 20BBL004
Subject: Family Law II
Faculty Member: Mr. Soham Bajpai
Faculty Member Assistant: Nil
All0cati0n Date:
Title Registrati0n Date:
Reason for selection 0f title: Nil
Synopsis Filing Date: Nil
Final Versi0n Filing Date:
Faculty’s pre-submissi0n pr0gress Nil

report, if necessary:
Extension 0f timeline requested Nil

and approved by faculty:
Viva-V0ce/Gr0up Discussi0n: Nil
T0tal durati0n:
Academic Integrity Declarati0n
“I warrant and represent that the attached report/research work/articles does not infringe upon any copyright or
other right(s), and that it does not contain infringing, libelous, obscene or other unlawful matter and that I have
given appropriate credit to the original author or source of information and fully adhered to GNLU research
guidelines. I am aware that the non-compliance with the GNLU academic integrity directive may result into non-
evaluation of the academic/research work, attracting failure in the subject or course and any other measures as
decided by the concerned faculty members.”
Khushal Bothra
“Student Signature & Date”
ABSTRACT
“There are no illegitimate children, only illegitimate parents.”
The goal of this paper is to examine illegitimate children's property rights over their parents'
property. The researchers aimed to know what rights illegitimate children have when it comes
to inheriting their parents' property. The study concluded that because there is no specific
legislation dealing with the designation of illegitimate offspring, personal laws of the parents
play a crucial role in deciding these rights. Although illegitimate offspring were formerly
unrecognized, in today's dynamic culture and changing socioeconomic standing, illegitimate
children are granted the same rights as legal children under Hindu law. On the other hand,
Muslim and Christian law, do not accept the word "illegitimate," hence they are denied these
rights. Although the law may not change, it is the obligation of the judge to adapt it to fit the
requirements of society.
Keywords: Illegitimate Children, Hindu law, Muslim law, Inheritance, Property rights
OBJECTIVES
 To understand the rights of illegitimate children in the ancestral property.
 To study various personal laws dealing with rights of illegitimate children.
 To study the rights granted to illegitimate children under Hindu Marriage Act, 1955 and
other personal laws.
 To pin down the true objectives behind the above-mentioned legislations.
 To identify gaps in the extant legal framework governing the inheritance.
 To suggest policy recommendations to remedy the highlighted lacunas.
RESEARCH METHODOLOGY
This research paper employs a qualitative approach, involving substantial theoretical data for
an analysis of the various correlations made, incorporating the doctrinal methodology. The data
used in this paper have been sourced from various primary and secondary sources like books,
cases, journal articles, legislations and online articles from websites amongst others.
RESEARCH QUESTIONS
 Whether a right to a parent’s property is granted to an Illegitimate child?

 If not, what are the possible property rights assigned to an Illegitimate child?
LIMITATIONS OF THE STUDY
 The study is challenging in its data collection of relevant information as there can be seen
that there are some of the following inherent limitations present:
 It is self-reported data and is limited by the fact that it is not independently verified.
 Also, due to the exceptional and special circumstances presented in light of the ongoing
pandemic, the data collected through this study will be limited in a way that the researchers
may not have seamless access to people, organizations, data, or documents.
 As concluded by many research studies point towards the fact that laws governing an
illegitimate child's property rights are influenced by the parents' relationship and also the
applicable personal laws. Therefore, there is no uniformity or suitable standards on the basis
of the rights of children born out of wedlock due to the lack of a unified code.
SIGNIFICANCE OF THE STUDY
In India, the validity of a kid is highly valued because to the involvement of personal laws and
the ideals they uphold. To put the same in context, a child born outside of marriage is
considered illegitimate because the child's legitimacy is determined by the relationship between
the parents. Contrarily, the law must change to reflect the shifting demands of society, and it is
the responsibility of the courts to do so.
Although an unmarried child is considered illegitimate, although being innocent in this

circumstance, the child nevertheless has to carry the brunt of society's wrath. In spite of the fact
that there are many illegitimate children in India, their cases are not widely reported.
Researchers hope to learn more about children's rights over their parents' property in this work,
as well as the function courts play in conjunction with personal laws.
REVIEW OF LITERATURE
• While the legal question posed by illegitimate children in India is not so alarming currently,
it is increasing at a concerning rate, according to the article, “Right to Property and
Maintenance of Muslim and Christian Illegitimate Children.” The Bombay and Kerala High
Courts have decided in multiple occasions that the father has merely a moral obligation and
duty and that a suit cannot be considered on the basis of equality, despite the fate of children
born out of wedlock. Owing to conflicting views among the various personal laws and the
judiciary's lack of discussion, the courts have taken a number of strong stances that require
careful consideration. Despite disagreements among personal laws, these laws themselves
have a different stance when it comes to classifying marriages; in Muslim law, this basis for
distinction takes the shape of the schools of Shia, Sunni, and Hanafi.
• As contended in an article titled “Property Rights of Illegitimate Children,” due to the

dynamic role of the judiciary, certain laws must be modified periodically to satisfy the needs
of society. On the other hand, interfering with personal laws is a time-consuming procedure,
and a uniform regulation on the subject is still far off. The courts have ruled over time that
all children, regardless of whether they are legitimate or illegitimate, are entitled to support
and, as a consequence, have the right to inherit ancestral property.
• • Ms. Khushi Rastogi's work, "Property Rights of an Illegitimate Child: Hindu Law and Muslim
Law," is pertinent to have a more comprehensive grasp of the property rights of an illegitimate kid.
This essay clearly and perceptively distinguishes between ancestral and self-acquired property in
order to make relevant points. The author made the case that an illegitimate kid is not a coparcener
and cannot pursue property division while talking about the differences between inherited and
acquired property. However, unmarried children possess the same rights over their father's property
as do legitimate offspring over property they have obtained on their own. According to the article,
courts have decided throughout time that an illegitimate child has ownership rights to both inherited
and self-acquired property. The courts have decided that, while upholding the sanctity and goals of
personal law, it is more crucial to defend the rights of illegitimate children than to give social
consequences priority, despite the Hanafis and other Muslim legal authorities having different
opinions on this matter.
• Ms. Kunjal Arora discusses the privileges accorded to illegitimate children under Hindu law
in her article titled “Illegitimacy under Hindu Law.” The right to equality enshrined in
Article 14 of the Indian Constitution is a fundamental right that should be extended to the
offspring of unrecognized marriages. Even if the marriage is invalid, the child produced
from it is innocent and should have the same rights as legitimate children, this is the primary
argument. According to the author, the absence of unifying legislation is due to the ever-
changing nature of Indian culture. Others choose a rational approach that does not consider
illegitimacy to be a forbidden subject, whereas some adhere to conventional techniques that
are heavily influenced by religion. While in all cases the parents are held accountable for
the outcome rather than the child, it is imperative to note that the child must bear the
consequences, which is neither right nor equitable. In order to safeguard the interests of
children born outside of wedlock, society must adopt a more permissive posture and undergo
a fundamental shift.
• In their paper titled “A critical analysis of property rights of illegitimate children”, Mr. Arul
Kannappan and Mr. Syed Afridi argue that our Indian society has a much more restrictive
view of children born outside of marriage than the United States. They emphasized that
Indian law does not guarantee illegitimate offspring a share of their parents' property.
Despite the fact that the personal laws of the community govern marriages of various
religions and other crucial issues, children are exposed to the diverse perspectives of
religious communities due to the absence of a unified set of rules on the subject. The essay
also emphasizes the lack of uniformity among various personal laws, arguing that while the
child is always innocent, it is exposed to differing perspectives. In addition, while Hindu
law recognizes the rights of children born outside of marriage, society does not consider
them the same as legitimate children.
• In their essay titled “What Are the Rights of Illegitimate Children under Hindu Law,” Ms.
Nimisha Srivastava has made an attempt to define what constitutes a null and invalid
marriage under Hindu law. In determining the parental property rights of an illegitimate
child, the legitimacy of the parents' marriage is a crucial factor. After the amendment was
implemented, which was actually interpreted differently, children born from voidable or
void marriages are regarded legitimate. Although these offspring have no legal claim to the
ancestral property, they do have a legal claim to their parents' property. The infant born
outside of marriage does not have access to ancestral property and cannot be a co-owner in
a Joint Hindu household. What was legal in the past may no longer be legal today, and the
courts have recognized these rights due to the child's innocence in such situations. Courts
have repeatedly held that an illegitimate child is entitled to their parents' ancestral and self-
acquired property since Section 16(3) of the Hindu Marriage Act of 1955 has no limits and
is interpreted broadly.
INTRODUCTION – SETTING THE TONE
“A child born in an illegitimate relationship or in a void marriage is innocent, and is entitled to all the rights which
are given to other children born in a valid marriage.”
|| ASHOK KUMAR GANGULY, J.

in Revanasiddappa v. Mallikarjun, (2011) 11 SCC 11 ||
Child Welfare is being prominently recognized at both national and international levels. For
instance, Article 25(2) of the Universal Declaration of Human Rights (UDHR) 1948,2 provides
that “motherhood and children are entitled to special care and assistance. All children born
whether in or out of wedlock shall enjoy the same social protection.”
The most monumental development in the context of human rights of the child is the
Convention of the Rights of the Child 1989,3 which came into force in 1990. It imposes an
obligation on all the ratifying states to comply with its provisions and also puts in place a
mechanism for monitoring compliance. India is also a ratifying state of the Convention. 4 It
deals with all the interdependent rights of a child which include social, economic, cultural,
civil, political and humanitarian rights. It emphasizes on the need to provide legal and other
forms of protection to the child before and after birth.5
In this light, it is important to discuss the issue of the rights (or the lack thereof) of illegitimate
children under the Personal Laws in India. The Latin word "illegitimus," which meaning "not
in accordance with the law," is where the word "illegitimacy" originates. An unwed child is
considered an illegitimate kid.6
Procreation between the parties to a Wedlock is the legally as well as socially acceptable norm.
Accordingly, an illegitimate child faces both legal as well as social consequences, in that, he
or she is not given equal rights as are conferred on a legitimate child. Additionally, he or she
also faces social stigmatization, discrimination, hardship and sometimes even ostracization
from the society.
1
Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1.
2
The United Declaration of Human Rights (1948).
3
The Convention on the Rights of the Child (1989), General Assembly Resolution 44/25.
4
SAVE THE CHILDREN, https://www.savethechildren.in/news/importance-of-uncrc-for-children-in-india-and-
theway-forward/ (last visited May 16, 2022).
5
Ibid.
6
Habibur Rahman Chowdhary v. Altaf Ali Chowdhary, AIR 1922 PC 159.
The often-cited rationale behind this uncalled-for treatment of illegitimate children is to- deter
illicit relations.7 Vesting rights in illegitimate children might encourage individuals to engage
in illicit relations, without the fear of any social or legal consequences. Another argument for
this biased distinction between the rights of illegitimate and legitimate children for legal
purposes is that conferring the status of ‘children born within wedlock’ on ‘children born
outside wedlock’ might adversely affect the rights of the wife and the children born within
marriage.
This is where it becomes a matter of debate- should innocent children be made to suffer the
consequences of the delinquent behaviour of their parents? This goes to the root of the saying
that “there can be illegitimate parents, but not illegitimate children.”8
The form and extent of discrimination of such children varies from society to society. Similarly,
the rights conferred on illegitimate children and their recognition varies across different
personal laws. One of these rights is the ‘right to inherit’, which is dealt with differently in the
personal laws that are in place.
The primary goal of this research paper is to give a general review of the rights that illegitimate
offspring have in relation to ancestral property under Muslim and Hindu law. The second step
is to evaluate the current legal system critically and pinpoint any gaps. Third, to provide
practical suggestions for the future.
7
Kusum, Rights and Status of Illegitimate Children, 40 JILI 295, 297 (1998).
8
THE INDIAN EXPRESS, https://indianexpress.com/article/india/uniformity-in-personal-laws-needed-to-
protectchildren-of-illegitimate-marriages-
karnatakahc7406264/#:~:text=%E2%80%9CA%20child%20has%20no%20role,observed%20in%20its%20rece
nt %20order (last visited May 16, 2022).
ILLEGITIMACY IN THE RELIGION OF HINDUISM
Hinduism accords great weight to familial relations, more specifically the role of ‘sons’. 9 The
religion believes that the birth of sons is auspicious to the parents and prevents them from going
to the ‘Puth’ or as colloquially known – hell. 10 In fact, the role of a son in Hindu law is
considered as paramount as the next authority of Family, who would perform important
functions such as – Punyavancharya, Namakarna, Ayush Homa and Upanayana.11 In this regard
however, the position of illegitimate children is not accorded similar weight in religious scripts.
While the roles and duties of legitimate children have clearly been set out in texts such as the
Smriti’s, no direction or rights have been placed for illegitimate children. 12
The little light shed by the Smritis in this regard gives us inferences on the rights and duties of
illegitimate children in Hinduism. For instance, Manu Chapter 9 Verse 49 indicates that a
children born illegitimately would not get the benefit of any subsequent wedlock between man
and wife. Building on this Chapter 9, Verses 50-51 also state that any ill-borne fruit will not
receive the benefit of the tree that bore it. 13 Therefore, the Manu Smriti lays down that
illegitimate child will receive no rights in the familial property, under normal circumstance.
However, there are several instances in which the role of illegitimate children may play a
paramount role in the family. These instances may be where the illegitimate child is the only
surviving heir to the family. 14 In such a situation, the Sutras provide some reasoning. Gautama’s
Sutra under chapter 28, verse 18 provides that in even that there is no familial heir to an estate,
then in such instances – the illegitimate child will be given a one-fourth share in the estate.15
Therefore, Hindu law while does not treat illegitimate children with rights equal to legitimate
children, it does not exclude their rights in all instances. In some instances, the religious scripts
allow illegitimate children to attain a share in property. 16
9
JR. DAVIS AND R DONALD, THE SPIRIT OF HINDU LAW, 62-65 (Cambridge University Press).
10
Rajeev Dhavan, Dharmaśāstra and Modern Indian Society: A Preliminary Exploration, JOURNAL OF THE
INDIAN LAW INSTITUTE 34 (4).
11
Id.
12
Id.
13
RANGANATH MISRA, MAYNE' S TREATISE ON HINDU LAW AND USAGE. 15th ed. (Bharat Law House 2003).
14
Id.
15
2 SATYAJEET A. DESAI, MULLA' S PRINCIPLES OF HINDU LAW, 17th ed. (Butterworths 1998).
16
Id.
ILLEGITIMACY IN THE RELIGION OF ISLAM
Unlike Hindu law, the Quran and Islam in general have detailed rules on the treatment of
illegitimate children. The notion of illegitimacy of a child in Islam is considered from the focal
point of the marriage between a husband and wife. 17 Islam considers two situations – a child
non born from an absolute wedlock and a child born out of a partial wedlock. Children born
when there is no marriage are considered to be illegitimate. However, the situation is more
complex when if a marriage occurs six months after there is impregnation. In such situations,
Islam deems that the child is not an illegitimate child – such a wedlock is known as a partial
one, which provides legitimacy to a child’s birth. 18
On the Question of such illegitimate children born out of a partial wedlock, there is not much
literature. However, this position has been largely clarified in 2017 when there was a
declaration made by the Muslim Committee of Jurists where it was stated that – if a child is
born prior to the six-month period or the period has elapsed for marriage, then the birth of such
a child would be considered as illegitimate in nature.19 In such instances the child will have no
ties to the ancestorial property of the father and will only be entitled to the ancestorial property
from the mother’s side of the family. 20
The reason for such characterization is attributed to the words of prophet Mohammed, where
his Holiness states that – “A legitimate child is the child of the bed (i.e. the Father), and. a child
of adultery is a child of no-one.”21 However, there is a debate amongst the Islamic scholars
whether the acknowledgement of an illegitimate child by the Zaani (i.e. Father) is considered
as conferred a valid status of legitimacy. Through the 1970s there was a divided view on this.
Some scholars the Ibd Alfrush scholars believed that an acknowledgement would have no
bearing on the status of the child, as the status of the child was one which is conferred by Allah
and not by the father.22
17
SAHNUN, AL-MUDAWWANAT AL-KUBRA, vol. II, p. 445; AHMAD AHMAD, MAWDU' AL-NASAB FI AI-SHARI
'AH WA AL-QANUN, p. 273.
18
Id.
19
FATWA, ALAMGHIRI, vol. IV, chapter XIV, P. 174; NEIL B.E. BAILLIE, A DIGEST OF MOHUMMUDAN LAW, p.
415.
20
Ibid
21
REUBEN LEVY, THE SOCIAL STRUCTURE OF ISLUI1L, p. 139; AL-JAZIRI, AL-FIQH 'ULA AL-MADLWHIB UL-
ARBA 'UH, vol. IV. pp. 63-67.
22
AI-ZURQANI, SHARH AL-ZLLRQWLI, vol. I, p. 276; AL-BAYHAQI, AL-SUNAN AL-KUBRA, vol. III, p. 91.
However, the other school of thought believed that since the Zaani is the bearer of the fruit, his
acknowledgement is the will of Allah, and hence such a free acknowledgement would turn
down the illegitimacy of the child and confer legitimate status for the child to make a claim in
the father’s ancestorial property. 23
This debate was finally put to rest by scholars such as Shaykh Muhammad Rasheed Rida in
Tafseer al-Manaar (4/382), and by Shaykh Ibn 'Uthaymeen as in ash-Sharh al-Mumti' (12/127)
where it was noted that in instances where the father deems that a lack of acknowledgement
would result in the compromise of the child’s religious education, then in such instances – it
must be considered that an acknowledgement would be to further the wishes of Allah and the
conferment of legitimacy would be valid. 24 This however would be dependent on a case by
case basis. 25
23
W. Robertson Smith, Kinship and Marriage, p. 287; W. Montgomery Walt, THE MLLJESTY TLLAR WAS
/SLALLL, p.
24
AI-San'ani, al-Musannaf, vol. VII, p. 456.
25
Id.
POSITION OF ILLEGITIMACY IN INDIAN LAW
The law in India lays down prescriptions on who is an illegitimate child. This position has been
extrapolated from various statutes. For instances, Section 112 of the Indian Evidence Act says
that:26
1. a child born within lawful wedlock (even just after the marriage) or
2. a child born within 280 days of the dissolution of marriage by death or divorce, but the
wife should remain unmarried; shall be considered as a legitimate child.30
The concept of legitimacy has further been dealt with under Section 16 of the Hindu Marriage
Act
Section 16 of the act confers the status of legitimacy on the children whether born out of the
void or voidable marriage through legal fiction. 27 It states that-
1. a child born out of void marriage (grounds of void marriage mentioned U/s 11), shall be
a legitimate child as they have born out of lawful wedlock.
2. If the court grants a decree of nullity in respect of a voidable marriage (grounds
mentioned
U/s 12), the child conceived before or after the decree shall be a legitimate child.28
So, the section comes into play when the marriage is being solemnized between the parties. 29
We cannot invoke the section in case of no solemnization of marriage.
26
The Indian Evidence Act, 1872, §112, No 1, Acts of Parliament, 1872
(India). 30 Kamti Devi v. Posh Ram, AIR 2001 SC 2226.
27
Govind Singh v. State of Madhya Pradesh, 1975 AIR 1378.
28
The Hindu Marriage Act, 1955, §16, No. 25, Acts of Parliament, 1955 (India).
29
State of Bombay v. Kathi Kalu Oghad, 1962 SCR (3) 10.
CONFLUENCE OF CONFUSION UNDER HINDU LAW
The Hindu Marriage Act's Section 16(3) limits the inheritance rights of illegitimate children to
their parents' property only and not to any other relatives' property, thus excluding all ancestral
properties.30 The Supreme Court in this regard has taken divergent views on this issue of
inheritance of illegitimate children in ancestorial property. 31 In 2003 and 2010, court rulings
concluded that an illegitimate child could only receive a portion of their father's self-acquired
properties. However, in 2011, 32 a different perspective was adopted stating that such children
have a right to claim a share in both the self-acquired and ancestral properties of their father.
In 2011, the matter was referred to the Chief Justice of India to be decided by a three-judge
bench. 33 Subsequently, in October 2013, the question was again referred to a three-judge bench
to obtain a final judgment on the legal issue. 34
To this day, the question remains unresolved and despite being listed in December 2018, the
main matter was never heard.35 When presented with a similar issue, the bench consisting of
Justices Lalit and Bose had to postpone the current case as they had no other choice, until a
decision is made in the main case. As of now, they have ordered to maintain the current state
of ownership and possession of the properties under question. 36
30
Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh, 17 I.A. 128 (1997).
31
Ibid.
32
Jinia Keotin and Ors. v. Kumar Sitaram Manjhi and Ors. (2003) 1 SCC 730; Bharath Mata v. R. Vijaya
Renganathan (2010) 11 SCC 483.
33
Thirumathi Ramayammal v. Thirumathi Mathumal, AIR 2014 SC 932.
34
R. Mehta, Illegitimate Child rights in Ancestorial Property: A confusion of Hindu Law, The Economic Times,
October 15, 2019.
35
Id.
36
Id.
POSITION OF INHERITANCE IN MUSLIM LAW
According to Muslim law, the legal status of a kid depends on the validity of their parents'
marriage. The kid is only known as having a mother tie and not a paternal one if the marriage
cannot be verified. The official relationship between a kid and their father is referred to as
paternity, which explains why. Asif Saadat Ali Khan v. Nafees Ara established a precedent
that mirrored this body of knowledge as well. 37
However, as has been noted in Sadiq Hussain v. Hashim Ali,38 various schools under Muslim
law have differing views regarding the recognition of paternity/maternity of a child born out
of a void marriage. The Shia school, for instance, does not acknowledge the paternity or
maternity of such a child.
Despite this, it is worth noting that a child who is considered illegitimate under Muslim law
can become legitimate if acknowledged by their father through expressed terms or through
necessary implication from the conduct of the parties. 39
Furthermore, Muslim law bestows a strong presumption of legitimacy on a child, these are;
1. If a child is born less than six months after a valid marriage, they are considered
illegitimate under Muslim law. However, if the father acknowledges the child, they can
be made legitimate.
2. On the other hand, if a child is born after six months of marriage, the child is considered
legitimate, unless the father denies the child by alleging that the wife had an
extramarital affair with someone else.
3. Additionally, under Shia law, if a child is born before 10 months after the dissolution
of marriage, they are considered legitimate. In Hanafi law, the timeframe is extended
to 2 years, and in Maliki/Shafi law, it is shortened to 4 months. 40
37
Nafees Ara v. Asif Saadat Ali Khan, 1963 CriLJ 394.
38
Sadiq Hussain v. Hashim Ali, (1916) ILR 38 ALL 627.
39
AHMAD AHMAD, MAWDU' AL-NASAB FI AL-SHARI'AH WA AL-QANUN, p. 272.
40
W. MONTGOMERY WALT, THE MAJESTY THAT WAS ISLAM, p. 19.
EXAMINING THE APPROACH OF HINDU LAW TOWARDS THE ILLEGITIMATE

CHILDREN’S RIGHTS TO THEIR ANCESTRAL PROPERTY
The issue whether the illegitimate children born out of void marriage are entitled to the share
in ancestral properties is related with the Section 16(3) of the Hindu Marriage Act. For the
matter of reference, Section 16(3) of the Hindu Marriage Act, 1955 has been reproduced below:
"16. Legitimacy of children of void and voidable marriages-
(1) xxx
(2) xxx
(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring
upon any child of a marriage that is null and void or which is annulled by a decree of
nullity under section 1241, any rights in or to the property of any person, other than the
parents, in any case where, but for the passing of this Act, such child would have been
incapable of possessing or acquiring any such rights by reason of his not being the
legitimate child of his parents.”42
A child of a void or voidable marriage may only assert rights to his parent's property, as stated in
the previous sentence. Nonetheless, we believe it's important to highlight that the legislature has
used the term "property" without adding any qualifiers about either inherited or self-acquired
property.
It has remained comprehensive and wide.
Considering the dilemma revolving around the interpretation of the word, ‘property’, the judiciary
has come out with its different rulings on the central issue of whether illegitimate children are
entitled to the right to ancestral property. Given below, these different rulings have been analysed
in light of the objectives and purpose of the Hindu Marriage Act, 1955.43
41
Hindu Marriage Act, 1955, §12, No. 25, Acts of Parliament, 1955 (India).
42
Hindu Marriage Act, 1955, §16(3), No. 25, Acts of Parliament, 1955 (India).
43
Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955 (India).
1. JINIA KEOTIN V. KUMAR SITARAM MANJHI, (2003)1 SCC 730
In this case44, the principal contention before the Hon’ble Supreme Court was whether children
born out of void and illegal marriage are safeguarded under Section 16 of the Hindu Marriage
Act,45 1955 for the purpose of providing share in ancestral property of the parents. The apex
court stated that though Section 1646 appreciably engrafted a rule of fiction in treating
illegitimate children as legitimate for the purpose of division in property of their parents,
however its application remained to get confined to the self-acquired properties of the parents
only.
The non obstante clause in provision 1647 expressly states that no rights over any person's
property, other than the parents', will be conferred by this provision. It said that the court should
not grant any additional rights to children who would have been declared illegitimate but for
Section 1648 of the Act by using any presumptive or inferential reasoning based on the mere
object or purpose of enacting Section 16 of the Act, given the legislature's express mandate. 56
The court further stated that any action to do so would not only be in violation of the provision
clearly engrafted in subsection (3) of Section 16 of the Act49, but it would also be an attempt to
court re-legislate on the issue under the pretence of interpretation, going against the will stated
in the statute itself. Thus, it held that illegitimate children won’t have any property rights in
their parents’ ancestral property under Section 16 of the Hindu Marriage Act.
2. SMT. SAROJAMMA AND ORS. V. SMT. NEELAMMA AND ORS., 2005 (5) KARLJ
66
The question before the apex court in this case was “whether within the meaning of the words
"the properties of parents", the joint family or an ancestral property of the parents are excluded;
and it is confined only to the self-acquired properties of the parents?”50 The court adopted the
44
Jinia Keotin V. Kumar Sitaram Manjhi, (2003)1 SCC 730.
45
46
47
48
56
49
50
Smt. Sarojamma and Ors. v. Smt. Neelamma and Ors., 2005 (5) KarLJ 66.
liberal interpretation of the word “property” in this case, and stated that it would not be fair to
restrict the legal fiction of legitimacy to the self-acquired properties of the parents and exclude
either the joint family or the ancestral properties of the parents.
As previously indicated, if a kid is granted legitimate child status, they should be treated in the
same manner as other children born to legally recognized parents, regardless of whether the
property is jointly owned by the family or was purchased by the parent(s). The purpose of
Section 16 of the Act is “intended to protect the interest of such children both in regard to their
status and the right to succeed to the estate of their parents.”
A liberal and broader interpretation should be given to this kind of benefit provision, which
attempts to safeguard the interests of such children, in order to fulfill the legislative goal. The
court concluded that any narrow interpretation would violate the clauses included in Sub-
section (3) of Section 16 of the Act. 51 Thus, with this decision, the court acknowledged the
illegitimate children's rights to the ancestral property.
This case further went as an appeal52 to the Supreme Court, where it was overruled by giving
the restrictive interpretation to the word ‘property’ and by relying upon the reasoning cited in
the judgement of Jinia Keotin case, however it became important to analyse this case as the
court further relied upon this Karnataka High Court judgement in Revanasiddappa case, and
held that illegitimate children should be given rights to their ancestral property.
3. BHARATHA MATHA & ANR. V. R. VIJAYA RENGANATHAN & ORS., AIR 2010
SC 2685
The Supreme Court, in this matter53, was of the opinion that children born out of void marriage
are only entitled to the self-acquired properties of their parents. The court placed its reliance
upon the Jinia Keotin & Ors. v. Kumar Sitaram Manjhi & Ors. case62, and stated that it would
trespass its boundaries if it could include the meaning of “ancestral properties” under Section
16(3) of the Hindu Marriage Act54 as it would go against the legislative intention of the state.
51
Id.
52
Neelamma & Ors. v. Sarojamma & Ors., 2006 (9) SCC 612.
53
Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., AIR 2010 SC
2685. 62 Jinia Keotin & Ors. V. Kumar Sitaram Manjhi & Ors. (2003) 1 SCC
730.
54
Any effort to do so would not only be in contempt of the provision plainly engrafted in
Subsection (3) of Section 16 of the Act,55 but it would also be a move to court-relegislate on
the matter under the guise of interpretation, which would not be in consonance with the statute's
objectives or aim.
4. REVANASIDDAPPA & ANR V. MALLIKARJUN & ORS, 2011 (11) SCC 1
This landmark ruling56 of the apex court came at the time when illegitimate children were given
step-motherly treatment at the time of division of ancestral property. The Supreme Court was
presented with two major legal questions in this case: (1) Should illegitimate children born out
of void marriages be considered coparceners under the terms of amendment 57 to the Hindu
Marriage Act, 1955, and (2) Are these illegitimate children entitled to a share of the ancestral
property if the coparceners divide it up?
Earlier, the High Court adjudicated upon this case and delivered its ruling that illegitimate
children are not entitled to ancestral property because of its judgement of Sri Kenchegowda
v. K.B. Krishnappa & Ors., case58, however, they are entitled to the share of their parents’
self-acquired properties.
Aggrieved by the decision of the High Court, the defendants-appellants brought this case in
the Highest court. The court stated that the amendment was brought to Section 16 of the Hindu
Marriage Act59 only with the objective of ending the stain of illegitimacy from the children
born out of void and voidable marriages.
As per the Supreme Court, a narrow interpretation of the word ‘property’ has been taken in the
cases of Jinia Keotin60 , Bharatha Matha case61and Neelamma & Ors. v. Sarojamma & Ors. 71,
wherein it was held that illegitimate children are only entitled to get the share in the self-
acquired properties of their parents; they are not entitled to any share in the ancestral property.
55
Id.
56
Revanasiddappa & Anr v. Mallikarjun & Ors, 2011 (11) SCC 1.
57
58
Sri Kenchegowda v. K.B. Krishnappa & Ors., ILR 2008 Kar 3453.
59
60
61
Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., AIR 2010 S2685.
71
The court stated that, on the basis of close perusal of the Section 16(3) of the Hindu Marriage
Act, it becomes clear that illegitimate children “would not be entitled to any rights in the
property of any person who is not his parent if he was not entitled to them, by virtue of his
illegitimacy, before the passing of the amendment. However, the said prohibition does not apply
to the property of his parents.”62
It is improper to discriminate against such children when they have been treated at par with
legitimate children, as per the clauses (1) and (2) of Section 16 of the Hindu Marriage Act.63
These children are entitled to “all the rights in the property of their parents, both self-acquired
and ancestral. The prohibition contained in Section 16(3) will apply to such children with
respect to property of any person other than their parents.”64
Based on this rationale, the court determined that the illegitimate children's property rights with
regard to ancestral property are unrestricted. Given the seriousness of the situation at hand, the
bench further asked the then-Hon. Chief Justice of India to bring the case before the full bench.
62
63
64
ANALYSING THE OBJECTIVES BEHIND THE AMENDMENT TO SECTION 16(3) OF

THE HINDU MARRIAGE ACT, 1955
Section 16 was essentially implemented to eradicate the social stigma associated with
illegitimate children prevalent in society. The change in the societal norms pertaining to
legitimacy has led to the redefinition of what was once considered illegitimate to now being
considered legitimate. 65This is a testament of how law can never afford to remain stagnant in
a changing world, which is why, an amendment to Hindu Marriage Act was brought into force.
Even the Supreme Court, in the case of Parayankandiyal Eravath Kanapravan Kalliani Amma
(Smt.) & Ors. v. K. Devi and Ors.66, noted that Section 16 of the Act aims to bring about social
changes and transform the traditional view towards illegitimate children. The main objective
of this section is believed to be the granting of social legitimacy to children who are innocent.
The previous notion under common law that the children of void or voidable marriages were
inherently illegitimate has been completely transformed with the amendment of Section 16(3).
It is imperative that we acknowledge the lawful recognition of children who have been deemed
legitimate under the law and uphold their entitlements to their parents' property. The statute
has been enacted with the purpose of promoting socially desirable objectives of eliminating
the societal stigma attached to illegitimate children, who should be treated like any other child.
The authors contend that the courts should bear in mind that the parent's relationship may be
illegal, but the birth of a child in such a relationship should be treated independently from their
relationship. The child is innocent and has the same rights as children born in legitimate
marriages. This is the crux of the amendment made to Section 16(3).
65
Id.
66
Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt.) & Ors. v. K. Devi and Ors., (1996) 4 SCC 76.
PURPOSIVE INTERPRETATION TO THE SECTION 16(3) OF THE HINDU MARRIAGE

ACT, 1955
It is an established law that provisions of any statute have to be interpreted keeping in view of
the objectives and purposes of the act.67 A court cannot read a socially desirable law as though
the words contained therein are written in stone.68 The purpose of such laws must be to further,
not to impede, the highly desirable social goal of reducing the stigma attached to such
children.69 The
Considering the objectives of the amendment made in Section 16, it is clear that courts have
given narrow interpretation to the word ‘property’ in the cases like Jinia Keotin70, Neelamma71
and Bharatha Matha72, which goes against the objectives of a beneficial legislation.
It is apt to refer to the words of Justice Singhvi, “on the partition of an ancestral property, the
property falling in the share of the parents of such children is regarded as their self-acquired
and absolute property. In view of the amendment, we see no reason why such children will
have no share in such property since such children are equated under the amended law with
legitimate offspring of valid marriage.”83 Given all these reasons, the authors submit that
legislative intention should be regarded by giving the purposive interpretation to Section 16(3)
of the Hindu Marriage Act.
67
Seaford Court Estates Ltd. v. Asher, [1949] 2 KB 202.
68
Kesavananda Bharati Sripadagalvaru v. State of Kerala and another, (1973) 4 SCC 225.
69
Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt.) & Ors. v. K. Devi and Ors., (1996) 4 SCC 76.
70
71
72
Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., AIR 2010 SC.
83
MUSLIM LAW: RIGHTS OF ILLEGITIMATE CHILDREN IN ANCESTRAL

PROPERTY
BACKGROUND
In Muslim Law, there is no concept of 'legitimation' that creates a new status for a child.
Instead, there is a provision for the acknowledgment of a child as legitimate in certain
circumstances. This acknowledgment is known as the doctrine of acknowledgement of
paternity, and it applies when the paternity of the child is uncertain, it has not been proved that
the child was born out of an adulterous relationship, or if the marriage between the
acknowledger and the mother of the child is not possible due to certain circumstances. 73
Under Muslim Law, legitimacy is closely connected with the establishment of paternity of the
child.74 In situations when the child's legality is doubtful, paternity can be proven by direct or
indirect evidence of the parents' marriage, as well as through the father's assumption or
admission of fatherhood. But a father's acknowledgement alone cannot give an illegitimate kid
legal status.75
LEGITIMACY UNDER MUSLIM LAW
The legitimacy of a child can be determined based on the nature of the marriage between the
parents.76 In Islamic law, there is a distinction made between different types of marriages: valid
(sahih), void (batil), and invalid/irregular (fasid). An irregular marriage is not the same as a
void marriage, and while the offspring of a void marriage is considered illegitimate, the
offspring of an irregular marriage is considered legitimate under Mohammedan Law. 77
For example, the marriage between a Hindu female and Muslim male is a fasid marriage and
not a batil marriage and hence, their child will not be considered to be illegitimate. A fasid
marriage, even after consummation, does not create mutual rights of inheritances between the
73
Mohammad Khan Sahib v. Ali Khan Saheb, 1981 Mad LJ 402; Syed Amandullah Hussain v. Rajamma, (1976)
2 AP LJ 323.
74
Sadik Husain Khan v. Hashim Ali Khan, ILR (1916) 38 All 627.
75
Razia Begum v. Sahebazadi Anwar Begum, AIR 1958 AP 195; Roshanbai v. Suleman, AIR 1944 Bom 213;
Rafiqa Begum v. Alisha Begum, AIR 1944 All 598.
76
Mohammed Salim v. Shamsudeen M. Illias, (2019) 4 SCC 130.
77
MULLA, PRINCIPLES OF MUHAMMADAN LAW 392 (LexisNexis 20th ed. 2013).
parties. Nonetheless, the child born in such a marriage is considered legitimate, similar to a
sahih marriage, and therefore has the right to inherit the father's property.
PRESUMPTION OF LEGITIMACY
In Muslim Law, there exists a "presumption of legitimacy," where certain assumptions are
made about the legitimacy of a child's birth. According to this presumption, [i] if a child is born
before six months from the date of a valid marriage, they are considered illegitimate; [ii] if a
child is born after six months from the date of marriage, they are presumed legitimate, unless
the father accuses the wife of adultery and disclaims the child; and [iii] if a child is born within
certain timeframes after the dissolution of the marriage - within 10 months under Shia Law, 2
78
years under Hanafi Law, and 4 months under Shafi Law - they are considered legitimate.
Under Muslim Law, the inclination is towards legitimization. Typically, courts decline to
accept illegitimacy when legitimacy can be inferred from the context and when such context
has not been challenged by any credible proof.79
The presumption of legitimacy under Muslim Law has some differences from the one provided
80
under Section 112 of the Indian Evidence Act, 1872. Section 112 of the law states that the
legitimacy of a child is determined based on the time of its birth and not the time of its
conception.81 The husband can only disown the child by providing evidence that he had no
opportunity to have sexual intercourse with his wife around the time of conception. The mere
allegation of adultery is not sufficient to disclaim paternity and the husband has to be prove
non-access to the wife. In Muslim Law, it is sufficient if the putative father disclaims the
legitimacy of the child by exercising the right of Lian (mutual divorce) on grounds of adultery
by the wife. POONAM PRADHAN SAXENA, FAMILY LAW II 561 (LexisNexis 5th edn. 2022).
STATUS OF ILLEGITIMATE CHILDREN UNDER MUSLIM LAW
HANAFI/SUNNI SCHOOL
Under the Hanafi or Sunni school of Muslim Law, an illegitimate child is deemed to be related
to its mother for purposes of inheritance. It also obligates the mother of an illegitimate child to
78
Smt. Dukhtar Jahan v. Mohd. Farooq, 1987 (1) SCC 624.
79
Munir Ahmad v. Muhammad Saddique, (2005) MLD 364.
80
POONAM PRADHAN SAXENA, FAMILY LAW II 561 (LexisNexis 5th edn. 2022).
81
The Indian Evidence Act, 1872, §112, No 1, Acts of Parliament, 1872 (India).
nurture the child till it attains the age of seven.82 An illegitimate child is entitled to inherit solely
from the mother and relatives related through the mother. However, it's important to note that
"mother's relations" do not extend to relatives from a subsequent marriage.94 In addition, it's
important to note that an illegitimate son is not entitled to inherit from his mother's legitimate
son.83 However, such child does not have any rights in the property of the putative father or
any other relations through the father.84
This evinces that illegitimacy is not a gender-neutral concept.85 It discriminates against the
mother as it bestows no responsibility on the father. It gives a boost to the view that the
illegitimate child is the result of the mother’s immorality and is no fault of the father, thereby
giving effect to the patriarchal mindset. 86
SHIA SCHOOL
Child does not inherit under Shia Law as an illegitimate child from either of their parents or
any of their relatives.99 An illegitimate child, under the Shia school, is treated as a filius nulluis.
Muslim Law, with respect to inheritance rights of illegitimate children, is not progressive. It is
also not in concomitance with the international conventions and the obligations contained
therein.
82
PARAS DIWAN AND PEEYUSHI DIWAN, MUSLIM LAW IN MODERN INDIA 123 (Allahabad Law Agency 2016).
94
Rahmat Ullah v. Maqsood Ahmad, (52) A.A. 640.
83
Ibid.
84
Roshni Desai v. Jahanzeb Niazi, (2011) PLD Lahore 423.
85
Radhika Yadav, Illegitimacy: An Illegitimate Concept, 3.1 IJLPP 87, 90 (2016).
86
Mary E. Becker, The Rights of Unwed Parents: Feminist Approaches, 63(4) The Social Service Review 496,
500 (1989). 99 Sahebzadee Begum v. Himmut Bahadur, (1870) 14 WR 125.
CONCLUSION
The historical, social stigmatisation of illegitimate children and their subsequent exclusion
from ancestral property inheritance has been a persistent issue in many societies. This practice
has resulted in an unjust and inequitable treatment of illegitimate children who are often
subjected to social ostracisation and economic deprivation. Removing the legal restriction of
excluding illegitimate children from ancestral property is crucial in protecting their legal rights
and addressing their socioeconomic vulnerability. 87 By giving illegitimate children right to
property, society can break the vicious cycle of poverty and marginalisation faced by these
children and create a more just and equitable society.
The Indian legal system has undergone significant changes over the years to provide equal
rights to illegitimate children in matters of inheritance of property. The Hindu Succession Act
1956 was amended in 2005 to grant equal rights to illegitimate children in ancestral property.
The amendment ensured that illegitimate children have the same rights as legitimate children
on the property of their father. The Supreme Court of India has also played a significant role in
protecting the rights of illegitimate children in ancestral property. The court has held that
denying inheritance rights to illegitimate children is a violation of their fundamental rights
guaranteed under the Indian Constitution. 88
However, it is essential to note that there are still shortcomings in law when it comes to giving
rights to the ancestral property to illegitimate children. An example of this is evident in Section
16 of the Hindu Marriage Act, 1955. The said provision grants inheritance rights solely to
children born out of marriages that are declared null and void under Sections 11 or 12 of the
Act, thereby excluding children born out of illegitimate relationships, concubinage, and live-
in relationships, among others. This exclusion highlights the arbitrary and discriminatory
nature of the legal system towards illegitimate children.
On the other hand, Muslim law, particularly the Shia School, entirely denies inheritance rights
to illegitimate children. While the Sunni School recognises such rights to some extent, it only
applies to the mother and does not impose any obligation on the putative father. This legal
87
88
Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1.
framework results in the complete denial of rights to a significant section of society and
reinforces their marginalisation and exclusion from mainstream society.
Another problem which arises in many cases, especially in Shia School, is difficulty in
establishing paternity through DNA testing or other legal means, which may be time-
consuming and expensive.89
Thus, the rights of illegitimate children in ancestral property have evolved significantly in
India, and they now have legal protection and equal rights in matters of inheritance. However,
the implementation of these rights can be challenging, and there is a need for continued
awareness and advocacy to ensure that illegitimate children can assert their legal rights without
facing stigma or discrimination in society.
89
Razia Begum v. Sahebazadi Anwar Begum, AIR 1958 AP 195.
BIBLIOGRAPHY
ARTICLES
Kusum, Rights and Status of Illegitimate Children, 40 JILI 295,

297 (1998).
Rajeev Dhavan, Dharmaśāstra and Modern Indian Society: A Preliminary Exploration,

JOURNAL OF THE INDIAN LAW INSTITUTE 34 (4).
J. Venkatesan, Illegitimate children entitled to ancestral property: Bench, The Hindu, April 8,
2011.
R. Mehta, Illegitimate Child rights in Ancestorial Property: A confusion of Hindu Law, The
Economic Times, October 15, 2019.
Mary E. Becker, The Rights of Unwed Parents: Feminist Approaches, 63(4) The Social Service
Review 496, 500 (1989).
BOOKS
AHMAD AHMAD, MAWDU' AL-NASAB FI AI-SHARI 'AH WA AL-QANUN.
AI-SAN'ANI, AL-MUSANNAF, vol. VII.
AI-ZURQANI, SHARH AL-ZLLRQWLI, vol. I.
AL-BAYHAQI, AL-SUNAN AL-KUBRA, vol. III.
AL-DIMUSHQI, KIFAYAT AL-AKHYAR.
AL-JAZIRI, AL-F IQH 'ULA AL-MADLWHIB UL-ARBA 'UH, vol. IV.
CHARLES HAMILTON, THE HEDAYA.
IBN AI-NAJJAR, MUNTAHA (d-Iradat, section 2).
IBN RUSHD, SIDAYAT AL-MUTAHID, vol. II.
MULLA, PRINCIPLES OF MUHAMMADAN LAW 392 (LexisNexis 20th ed. 2013).
PARAS DIWAN AND PEEYUSHI DIWAN, MUSLIM LAW IN MODERN INDIA 123 (Allahabad Law
Agency 2016).
POONAM PRADHAN SAXENA, FAMILY LAW II 561 (LexisNexis 5th ed.

2022).
RANGANATH MISRA, MAYNE'S TREATISE ON HINDU LAW AND USAGE. 15th ed. (Bharat Law
House, 2003).
REUBEN LEVY, THE SOCIAL STRUCTURE OF ISLUI1L.
SAHNUN, AL-MUDAWWANAT AL-KUBRA, vol. II, p. 445.
SATYAJEET A. DESAI, MULLA'S PRINCIPLES OF HINDU LAW, 17th ed. 2 Vol. (Butterworths,
1998).
SUBHI MAHMASSANI. TURATH AL-KHULAFA.
W. MONTGOMERY WALT, THE MLLJESTY TLLAR WAS /SLALLL.
W. ROBERTSON SMITH, KINSHIP AND MARRIAGE (Read Books, 2008).
WERNER MENSKI, HINDU LAW: BEYOND TRADITION AND MODERNITY (Oxford University
Press, 2003).
CASES
Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., AIR 2010 SC 2685.
Govind Singh v. State of Madhya Pradesh
Habibur Rahman Chowdhary v. Altaf Ali Chowdhary, AIR 1922 PC 159.
Jinia Keotin and Ors. v. Kumar Sitaram Manjhi and Ors. (2003) 1 SCC 730
Kamti Devi v. Posh Ram
Kesavananda Bharati Sripadagalvaru v. State of Kerala and another [(1973) 4 SCC 225]
Mohammad Khan Sahib v. Ali Khan Saheb, 1981 Mad LJ 402
Mohammed Salim v. Shamsudeen M. Illias, (2019) 4 SCC 130.
Munir Ahmad v. Muhammad Saddique, (2005) MLD 364.
Nafees Ara v Asif Saadat Ali Khan, 1963 CriLJ 394.
Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt.) & Ors. v. K. Devi and Ors., (1996)
4 SCC 76.
Rafiqa Begum v. Alisha Begum, AIR 1944 All 598.
Rahmat Ullah v. Maqsood Ahmad, (52) A.A. 640.
Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh
Razia Begum v. Sahebazadi Anwar Begum, AIR 1958 AP 195
Revanasiddappa & Anr v. Mallikarjun & Ors, 2011 (11) SCC 1;
Roshanbai v. Suleman, AIR 1944 Bom 213
Roshni Desai v. Jahanzeb Niazi, (2011) PLD Lahore 423.
Sadik Husain Khan v. Hashim Ali Khan, ILR (1916) 38 All 627.
Sadiq Hussain v Hashim Ali, (1916) ILR 38 ALL 627.
Sahebzadee Begum v. Himmut Bahadur, (1870) 14 WR 125.
Seaford Court Estates Ltd. v. Asher, [1949] 2 KB 202.
Smt. Dukhtar Jahan v. Mohd. Farooq, 1987 (1) SCC 624.
Smt. Sarojamma and Ors. v. Smt. Neelamma and Ors., 2005 (5) KarLJ 66;
Sri Kenchegowda v. K.B. Krishnappa & Ors., ILR 2008 Kar 3453.
State of Bombay v. Kathi Kalu Oghad
Syed Amandullah Hussain v. Rajamma, (1976) 2 AP LJ 323.
Thirumathi Ramayammal v. Thirumathi Mathumal, AIR 2014 SC 932.
LEGISLATIONS
The Hindu Marriage Act, 1955, §16, No. 25, Acts of Parliament, 1955 (India).
ONLINE SOURCES
SAVE THE CHILDREN, https://www.savethechildren.in/news/importance-of-uncrc-for-

childrenin-india-and-the-way-forward/ (last visited May 16, 2022).
THE INDIAN EXPRESS, https://indianexpress.com (last visited May 16, 2022).
OTHERS
The Convention on the Rights of the Child (1989), General Assembly Resolution 44/25.
The United Declaration of Human Rights (1948).

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GUJARAT NATIONAL LAW UNIVERSITY

RIGHTS OF ILLEGITIMATE CHILDREN IN ANCESTRAL PROPERTY:

Khushal Bothra – 21BCL011

I. TABLE OF CONTENTS .............................................................................................................................. 2

II. ACKNOWLEDGEMENT ............................................................................................................................. 4

III. ACADEMIC INTEGRITY FORM.............................................................................................................. 5

VI. RESEARCH METHODOLOGY ................................................................................................................. 8

VII. RESEARCH QUESTIONS........................................................................................................................... 9

VIII. LIMITATIONS OF THE STUDY ............................................................................................................. 10

IX. SIGNIFICANCE OF THE STUDY ............................................................................................................ 11

X. REVIEW OF LITERATURE .................................................................................................................... 12

XI. INTRODUCTION – SETTING THE TONE............................................................................................ 15

XII. ILLEGITIMACY IN THE RELIGION OF HINDUISM........................................................................ 17

XIII. ILLEGITIMACY IN THE RELIGION OF ISLAM ................................................................................ 18

XIV. POSITION OF ILLEGITIMACY IN INDIAN LAW ............................................................................. 20

XV. CONFLUENCE OF CONFUSION UNDER HINDU LAW .................................................................. 21

XVI. POSITION OF INHERITANCE IN MUSLIM LAW............................................................................. 22

XVII. EXAMINING THE APPROACH OF HINDU LAW TOWARDS THE ILLEGITIMATE

CHILDREN’S RIGHTS TO THEIR ANCESTRAL PROPERTY .......................................................... 23

1. Jinia Keotin V. Kumar Sitaram Manjhi, (2003)1 Scc 730

4. Revanasiddappa & Anr V. Mallikarjun & Ors, 2011 (11) Scc 1

XX. MUSLIM LAW: RIGHTS OF ILLEGITIMATE CHILDREN IN ANCESTRAL PROPERTY ...... 30

Legitimacy Under Muslim Law..................................................................... 30

Presumption Of Legitimacy .......................................................................... 31

Status Of Illegitimate Children Under Muslim Law....................................... 31

XXI. CONCLUSION ........................................................................................................................................... 33

XXII. BIBLIOGRAPHY ....................................................................................................................................... 35

ACADEMIC INTEGRITY FORM

Student Name: Harshit Upadhyay, Sanigdh Budhia and Aditya Sharma

Registrati0n N0. and Semester: 20BAL031, 20BAL080 & 20BBL004

Subject: Family Law II

Faculty Member: Mr. Soham Bajpai

Faculty Member Assistant: Nil

Title Registrati0n Date:

Reason for selection 0f title: Nil

Synopsis Filing Date: Nil

Final Versi0n Filing Date:

Faculty’s pre-submissi0n pr0gress Nil

Extension 0f timeline requested Nil

Viva-V0ce/Gr0up Discussi0n: Nil

Academic Integrity Declarati0n

“There are no illegitimate children, only illegitimate parents.”

 To understand the rights of illegitimate children in the ancestral property.

 To study various personal laws dealing with rights of illegitimate children.

 To pin down the true objectives behind the above-mentioned legislations.

 To identify gaps in the extant legal framework governing the inheritance.

 To suggest policy recommendations to remedy the highlighted lacunas.

 Whether a right to a parent’s property is granted to an Illegitimate child?

LIMITATIONS OF THE STUDY

SIGNIFICANCE OF THE STUDY

Although an unmarried child is considered illegitimate, although being innocent in this

• As contended in an article titled “Property Rights of Illegitimate Children,” due to the

INTRODUCTION – SETTING THE TONE

|| ASHOK KUMAR GANGULY, J.

ILLEGITIMACY IN THE RELIGION OF HINDUISM

ILLEGITIMACY IN THE RELIGION OF ISLAM

POSITION OF ILLEGITIMACY IN INDIAN LAW

CONFLUENCE OF CONFUSION UNDER HINDU LAW

POSITION OF INHERITANCE IN MUSLIM LAW

EXAMINING THE APPROACH OF HINDU LAW TOWARDS THE ILLEGITIMATE

"16. Legitimacy of children of void and voidable marriages-

1. JINIA KEOTIN V. KUMAR SITARAM MANJHI, (2003)1 SCC 730

4. REVANASIDDAPPA & ANR V. MALLIKARJUN & ORS, 2011 (11) SCC 1

ANALYSING THE OBJECTIVES BEHIND THE AMENDMENT TO SECTION 16(3) OF