The Legitimacy of Children in Hindu Law

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“There are no illegitimate children, only illegitimate parents”

Leon R. Yankwich  

In all societies, the status of children, whether they are born from legitimate relationships or illegitimate relationships, has a great impact on their lives. From historic to contemporary world, both have been classified differently and their rights and liabilities also varied accordingly. The legitimate one always had all the privileges while the illegitimate faced a lot of discrimination and hardships. Not only the society, but the law has given different status to both. To understand the concept of legitimacy, it is important to understand the meaning of the term first. 

The word legitimacy has been derived from a Latin word ‘legitimare’ which means to make lawful. As defined by the Oxford Dictionary, illegitimacy means, “(of a child) born of parents not lawfully married to each other”. Based on these definitions we can understand that legitimacy is an important concept in our society. There is a social stigma for a child that is born out of premarital or extra-marital sexual relationships, as they are considered as offensive relationships or sin in personal laws. Almost all religions do not recognise such relationships. 

The concept of legitimization

Legitimization is a process of recognizing a child to be legitimate. For example, the subsequent marriage of the parents of the child and recognition by the man. In India, both Hindu and Muslim laws do not recognize the concept of legitimization but the concept of legitimacy while some foreign laws recognise this concept like the Portuguese law in Goa, The Legitimacy Act, 1926 of England, etc.

Legitimacy according to Hindu Laws

 According to Hindu laws, a marriage that fulfils the conditions provided under Section 5 and section 7 is considered to be a valid marriage and a child born out of such wedlock as a legitimate child. But if a marriage does not fulfil the aforesaid conditions then they become void or voidable as according to Section 11 and Section 12 of the Hindu Marriage Act, 1986.

Section 11 provides that under the following conditions a marriage is void:

  1. If the marriage is bigamous

  2. If the persons married fall in the sapindas of each other.

  3. If the persons fall in the prohibited degree of marriage to each other.

Section 12 lays down the provision of voidable marriage, that under the following circumstances the marriage would become voidable, and it is then on the discretion of the parties to get the decree of annulment from the Court:

  1. When one party was insane at the time of marriage;

  2. When a party was impotent at the time of marriage;

  3. When the wife was pregnant with someone else’s child at the time of marriage without the knowledge of the husband;

  4. If the consent for marriage was obtained by fraud or force.

In case of void or voidable marriage, the child conceived or begotten before the decree of annulment has been passed, would be considered legitimate but, if the decree of annulment has been passed and then the child is conceived, he would be considered illegitimate, as has been provided by Section 16 of the Act.

The child born out of a valid marriage has all the rights in property, guardianship, maintenance and inheritance, but an illegitimate child does not all such rights. Further, we discuss the rights of an illegitimate child.

Rights of Illegitimate Child in Hindu Law

The Hindu law provides the rights of an illegitimate child which can be categorised into three main heads:

  1. Maintenance 

  2. Inheritance 

  3. Guardianship 

Maintenance:

According to the Hindu Adoption and Maintenance Act, 1956, a Hindu is bound to maintain his or her illegitimate child. Now, both the mother and father are bound to maintain the child, while earlier only the father was responsible for the maintenance of the child. The right of maintenance extends to a minority of child. The child, if he ceases to be a Hindu, he shall not be entitled to maintenance. In the case of an illegitimate daughter, she is entitled to maintenance until she is married.

Inheritance:

An illegitimate child is not entitled to inherit the property of the father but can inherit the property of the mother.

Guardianship: 

“A mother has a preferential right of guardianship, as per the Hindu Minority and Guardianship Act, 1956. The mother is considered the natural guardian of an illegitimate child and after her, the father is the natural guardian, and in the case of a married girl, the husband is the natural guardian. Supreme Court has recently ruled that an unwed single mother in India can be a sole guardian of the child.”

 

Landmark Cases:

  • Revanasiddappa vs. Mallikarjun

The Supreme Court stated that “the constitutional values enshrined in the Preamble of our Constitution which focuses on the concept of equality of status and opportunity and also on individual dignity. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such a relationship has to be viewed independently of the relationship of the parents.”

 

  • Jinia Keotin vs. Kumar Sitaram Manjhi

The Supreme Court opined that “Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If the marriage itself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardising the children born of the parties to such marriage.”

 

  • Shanta Ram vs. Smt. Dargubai

The court stated that “the children of void marriages would be deemed legitimate, irrespective of the decree of nullity although they would not acquire the right to succession to the same extent as is available to the children of a valid marriage.”