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FAMILY LAW II

COMPARITIVE ANALYSIS OF ILLEGITIMATE


CHILD RIGHTS UNDER HINDU, MUSLIMAND
CHRISTIAN LAW

Submitted by

P.Mohandas
Reg. No. BA0150026

Under the Guidance of

Mrs. Deepika
Assistant Professor

TAMIL NADU NATIONAL LAW SCHOOL


(A State University established by Act No. 9 of 2012)
Tiruchirappalli
Tamil Nadu 620 009 MARCH 2017
Mrs.S. Deepika
Assistant Professor in Family law
Tamil Nadu National Law School
Tiruchirappalli
Tamil Nadu 620 009

CERTIFICATE

This is to certify that the project work entitled Comparitive analysis on illegitimate child
rights under Hindu, Muslim and Christian law is a bonafide record of the research work
done by P.Mohandas, under my supervision and guidance. It has not been submitted by any
other University for the award of any degree, diploma, associate ship, fellowship or for any other
similar recognition.

Place: Tiruchirappalli

Signature of the Guide


P.Mohandas
Reg. No. BA0150026 II Year B.A. LLB.(Hons.)
Tamil Nadu National Law School
Tiruchirappalli
Tamil Nadu 620 009

DECLARATION

I, P.Mohandas, do hereby declare that the project entitled Comparitive analysis

on illegitimate child rights under Hindu, Muslim and Christian law submitted to Tamil

Nadu National Law School in partial fulfillment of requirement for award of degree in

Under Graduate in Law to Tamil Nadu National Law School, Tiruchirappalli, is my

original research work. It and has not been formed basis for award of any degree or

diploma or fellowship or any other title to any other candidate of any university.

Counter Signed Signature of the Candidate


Project Guide
ACKNOWLEDGEMENT
At the outset, I take this opportunity to thank my Professor Mrs. S.Deepika from the

bottom of my heart who has been of immense help during moments of anxiety and torpidity

while the project was taking its crucial shape.

Secondly, I convey my deepest regards to the Vice Chancellor Dr.KAMALA

SANKARAN and the administrative staff of TNNLS who held the project in high esteem by

providing reliable information in the form of library infrastructure and database connections in

times of need.

Thirdly, the contribution made by my parents and friends by foregoing their precious time

is unforgettable and highly solicited. Their valuable advice and timely supervision paved the

way for the successful completion of this project.

Finally, I thank the Almighty who gave me the courage and stamina to confront all

hurdles during the making of this project. Words arent sufficient to acknowledge the

tremendous contributions of various people involved in this project, as I know Words are Poor

Comforters. I once again wholeheartedly and earnestly thank all the people who were involved

directly or indirectly during this project making which helped me to come out with flying colors.
INDEX

S.NO TOPICS
1 INTRODUCTION
2 HINDU LAW
INHERITANCE UNDER TRADITIONAL HINDU LAW
INHERITANCE LAW POST AMENTMENT TO S.16 OF THE
HINDU MARRIAGE ACT

3 MUSLIM LAW
RIGHT TO INHERIT PROPERTY
4 CHRISTIAN LAW
RIGHT TO PROPERTY OF ILLEGITIMATE CHILD
5 CONCLUSION
6 BIBLIOGRAPHY
COMPARITIVE ANALYSIS OF ILLEGITIMATE
CHILD RIGHTS UNDER HINDU, MUSLIMAND
CHRISTIAN LAW

INTRODUCTION

The term illegitimacy is derived from the Latin illegitimus which means not in accordance
with the law. Procreation within legally or socially recognized relationships between the man
and woman is accepted norm. Though there are variations in societies based on their social and
cultural traditions as regards the flexibility or stringency with which laws and customs governing
marriage relationships are to be applied and observed, there has been universal disapproval of
children being born outside wedlock.

While promiscuity might be tolerated in some societies, it is nowhere commended. Thus one
reason for not recognizing the status of children born without a legally sanctioned union could be
to discourage promiscuous or illicit relations. The fear that children born out of such union
would be stigmatized and subjected to discrimination and hardship might act as a refraining
factor or parents indulging in sexual activities. The ethics and propriety of making children suffer
in order to conformity from adults is however, a matter of debate.

Children born outside wedlock are sought to be distinguished and discriminated also on the
ground that conceding the same status to them with children born within wedlock would
adversely affect the rights of the wife and the children born within marriage. The sharing of
physical company and properties between children born within and outside wedlock would be at
the expense of the former, and that the peace and stability of the marriage would be threatened.

Very often a dominant group loses its primacy over other groups in view of the ever changing
socioeconomic scenario and the consequential vicissitudes in human relationship. Law takes its
own time to articulate such social changes through a process of amendment. That is why in a
changing society law cannot afford to remain static. And hence, we observe that various personal
laws have undergone a change.
In the late 20th century, with the progression of society, there was an attitudinal and behavioral
change towards the illegitimate issue. This change was ushered in with social and political
changes along with societys transformation from a primitive agrarian society to a modern
urbanized, industrial nation. With the change in societys behavior, the laws were amended to
incorporate the same. The concept of legitimacy stems from social consensus, in the shaping of
which various social groups play a vital role. In several countries, laws have been implemented
and the legal position of illegitimate children has vastly improved.

HINDU LAW

ILLEGITIMATE SONS

A mitakshara coparcenary consists of only the male offspring of the lineal male descendants.
Illegitimate sons are not coparceners but members of joint family, and if a partition takes place
between the father and the sons, they can be allotted a share. The father can give an equal share
to the illegitimate son. However after the death of the father, if a partition takes place, the
illegitimate son will get half the share of a legitimate son. The Hindu marriage Act confers
legitimacy on children born out of void and voidable marriages to enable them to inherit the
property of their parents, but this legitimacy does not enable the children to inherit the property
of any other relations of their parents. Children born of live in relationship are akin to
illegitimate children and would not be coparceners.

INHERITANCE UNDER TRADITIONAL HINDU LAW

Dharma sastra exhibits a very pragmatic and practical approach and acknowledges that
ultimately and for a variety of reasons, individuals do want to be independent and set up their
own homes. Dharma sastra seeks to safeguard the interests of different sections of the society
and here, the endeavour is to balance the interests of the individual within the family, and at the
same time to prevent disintegration of the family as a social unit, and avoid fragmentation of
economically and sustainable units of property. Since Hindu society has always been a
patriarchal society, property rights of male members of the family were always supreme and
were considered to be more appropriate than family members. Although, constant efforts were
made during that era to provide for women as mothers, daughters-in-laws etc. a right to property.

If we look at the commentaries and the Vedic age, amongst the dictates of manu, hinting at the
negation of rights of women to be owners of property, there are still ample references, indicating
that a woman was always capable of owning property. However, there was a lot of difference
between theory and the practice which was actually followed. According to the texts, she could
hold property but actually the property given to women was meagre to the property given to
man. Also, she didnt have absolute right to dispose of the property and restrictions were placed
on her. The restrictions were considered to be necessary by our traditionally patriarchal setup
and it was thought that if women were given absolute freedom then they will neglect their
marital obligations and management of household affairs. As declared by Narada, The
transactions of a woman had no validity, especially the gift, hypothecation or sale of a house or
field. Such transactions were valid only when they were sanctioned by the husband or on a
failure of the husband, by the son."

Before the codifying of Hindu law, there were different commentaries and digests which decided
on the inheritance issues among Hindus and as the time grew these commentaries acquired ex
cathedra character. The result was that two rival schools of inheritance, the Mitakshara School
and the Dayabhaga School, came into existence. Regarding the origin and development of these
schools, it has been said by the Privy Council, "The remoter sources of Hindu law are common
to all the different schools....Works universally or generally received became the subject of
subsequent commentaries. The commentator put his own glosses on the ancient text, and his
authority having been received in one and rejected in another part......., schools with conflicting
doctrine arose. Thus, Mitakshara which is universally accepted by all the schools except that of
Bengal as of highest authority......; and the Dayabhaga, prevails in Bengal." The smritis used by
Vijnanesvara and Jimutavahana in establishing the principles of these schools was same but it
was their different interpretation of these smritis which resulted in both these rival doctrines. The
fundamental difference between the two schools is with regard to the principle on the basis of
which the right to inheritance is to be determined. These schools born of diversity of doctrines
marked a new stage in the evolution of Hindu law. The common principle on which both of them
rely is that a sapinda inherits the deceaseds property. This is also where differences arise as to
how sapindas should be understood for inheritance issues. Under Mitakshara law, community of
blood is to be preferred to community in the offering of religious ablations is the governing
factor whereby the right to inherit arises whereas under Dayabhaga, the right arises from spiritual
efficacy i.e. the capacity for conferring spiritual benefit on the manes of paternal and maternal
ancestors. Under Mitakshara law, only agnates could inherit the property no matter how distant
they were to the deceased which meant that the property could go to a distant male cousin but not
to ones own daughters son. However, under Dayabhaga law, the view was more of liberal and
allowed cognates to inherit the property such as a person can inherit his maternal grandfathers
property if he had no son. According to Mitakshara law, each son acquires an equal interest in his
fathers property as soon as he is born and on his fathers death gets the property by survivorship
whereas under Dayabhaga, the son doesnt acquire any interest in fathers property by birth and
his rights regarding the property are determined only after fathers death. Thus, the Mitakshara
shows a clear sign of following a strong patriarchal system whereas Dayabhaga showed a clear
departure from set norms and a dilution in traditional patriarchal structure. According to
Dayabhaga(Bengal) school, the only females who can inherit the property of a male are the
widow, daughter, mother, fathers mother and fathers fathers mother. The Madras school, in
addition to the above mentioned five heirs, also recognizes three more heirs known as bandhus
which are brothers daughter, brothers sons daughter and fathers brothers daughter. According
to all schools, except Bombay, a female who has inherited property from a female relation is not
the wholesome owner of the property and is known as a limited owner of the property. Except in
case of fulfilling indispensable religious and charitable purposes including for spiritual benefits
to her husband, a woman doesnt have a right to alienate such property. The limitation is with
respect to the power over its disposal and the inability to transmit this estate to her own heirs, but
otherwise she had full powers to possess it and appropriate the income generated from it. During
her lifetime, no person had any right of succession over that property, though after her death the
property passed on to the next heir of the male from whom she inherited it. With regard to the
property inherited from female relation relations also, the concept of limited ownership was
present. In Bombay school, other than five females mentioned above, the other females who had
the right to inherit the property as heirs were daughters of descendants and ascendants and
collaterals within five degrees and widows of gotraja sapindas. Female heirs under this school
are divided into two following classes:

Those who come into the gotra of the deceased owner, by marriage i.e. wife of the deceased and
the wives of his sapindas and samanodakas.

Those who are born in the gotra of the deceased owner but pass by marriage into different gotra
and their daughters such as a daughter, daughters daughter, sister, niece, fathers sister and the
like.

Under the first class females have limited ownership of the property whereas under class (ii), the
female heirs become the absolute owners of the property. Such property is considered to be
stridhana and thus governed by Mitakshara law. In cases of property inherited from females, they
become the absolute owners of the property.

Dayabhaga follows the principle that sons can divide the ancestral wealth only after the death of
both the father and the mother. Here, the son is given a position of prominence and widows
seemingly absolute right to the property is circumscribed by the rights of the son. Though, in
case of more than one widow, it is said that partition is as per the widows, it is submitted that the
reference to equal number of sons signifies that the mothers right to partition is limited by the
sons and that each widow is allowed to take an equal share temporarily. As opposed to
Dayabhaga, in Mitakshara, as mentioned above, son is vested with an interest in the property
since his birth. The wife loses her position of equality and her status as the joint owner with the
husband. Though Vijnanesvara says that a man should give an equal shar to his wife and sons are
also supposed to give their mother an equal share after fathers death.

According to Hindu family system, the daughter becomes part of her husbands family and
accordingly is entitled to inherit property from her husband or son. However, in case of
unmarried daughter, dharma sastras have clearly laid down that such daughters have right to be
maintained by her father and brothers. It has been laid down by Manu that each brother must
give one-fourth of the share to his unmarried sister. According to Mitakshara, the expression one-
fourth did not mean one-fourth of each brothers share but only one-fourth of the share the
daughter would have received if she were a son. This interpretation greatly reduces the share of a
daughter and is biased against them. Though, it is, in general, according to the usual pattern
followed by Mitakshara as usually it gives the son a superior right to inherit as compared to
daughters.

As we all know that women always had limited ownership of the property they inherited which
has been reiterated in the Privy Councils judgment her right is of the nature of a right of
property; her position is that of owner; her powers in that character are, however, limited; but so
long as she is alive no one has any vested interest in the succession". The estate of a Hindu
widow is an absolute one subject to certain restrictions.

As far as the rights of a sonless widow to inherit the property are considered, Mitakshara has
clearly laid down that sonless widow can inherit the separate estate of the husband i.e. his self
acquired property and his share in ancestral property if he has separated from the family.
However, she gets no share in the husbands ancestral property if he was undivided or had
rejoined the family, though husbands family had to maintain her in that case.

Presently, an illegitimate son inherits only from the mother, and not from the father. Under Hindu
law, the rights of an illegitimate son to get a share at the time of partition, depends upon his
caste. Among the three castes, Brahmins, kshatriyas and vaishyas, an illegitimate son is not a
coparcener, but a member of his putative fathers joint family, and therefore, though he is not
entailed to a share in the property his rights of the maintenance out of the joint family funds are ]
recognized.1 A son of a permanently kept concubine, called Dasiputra, who is a sudra, is neither
entaitled to ask for a partition, nor to get a share if the father was joint with his collaterals. 2
Where the family was separated from his collaterals, a dasiputra has no right to demand a
partition from him3, nor to claim a share if a partition takes place between the father and the

1 Vellayappa v. Natarajan, (1931) 58 IA 402.

2 Gur Narain Das v. Gur Tahal Das, (1952) 2 Mad LJ 251 (SC); Vellayappa v. Natarajan, (1931) 58 IA
402.

3 Dorai Babu v. Gopala Krishna, AIR 1960 Mad 501


legitimate sons, but he can validly be given a share by his father. It is totally the discretion of the
father, which he can exercise at his pleasure.4 He also has the power to decide the quantum of the
share. It can be less than or even equal to the share of that of his legitimate sons, or there can be
no share at all, but if the father is dead and the coparcenary comprises only the brothers, then the
position is different. Here, not only is the dasiputra entitiled to enforce the partition, but he can
also get a share in his own right and not merely at the discretion of the other brothers. The extent
of his share would be one forth of what the other brothers (legitimate sons of his father) would
take5, but with the incidences of survivorship,i.e., if the family comprised a legitimate son of the
father and a dasiputra, during the lifetime of the father, the dasiputra would have neither a right
to ask for a partition, nor a claim to get a share if a partition takes place and no incedences of
survivorship with the father, but if the father gives him the share, such action would be valid, and
its quantum will be decided by the father. On the death of the father, he will be a coparcener with
the brother, with a right of survivorship, a right to ask for a partition of the property and right to
get a share equal to one forth(1/4) of the latters share. If the brother dies before partition has
been effected, the dasiputra would take the whole of the property under the doctrine of
survivorship.

Inheritance law post amendment to Section 16 of the Hindu Marriage Act


The Amendment Act of 1976 (Act 68 of 1976) amended Section 16 of the Hindu Marriage Act,
1955. By this amendment, irrespective of whether marriage is null and void under Section 11,
any child of such marriage whether born before or after the commencement of the Amendment
Act shall be legitimate. Sub section 3 of this section also grants a right to property of the parents,
to such illegitimate children.
By the use of the word property the section has kept the meaning general and broad.
The amendment to Section 16 has been introduced and was brought about with the obvious
purpose of removing the stigma of illegitimacy on children born in void or voidable marriage.6

4 Pakirisamy v. Doraiswami,(1931) ILR 9 Rang 266

5 Kamulammal v. Visvanathaswami, AIR 1923 PC 8; Gur Narain Das v. Gur Tahal Das, (1952) SC 225

6 Revansiddappa & Ors v. Mallikarjuna & Ors, (2011) 4 SCR 675


The issues relating to the extent of property rights conferred on such children under Section
16(3) of the amended Act were first discussed in detail in the case of Jinia Keotin and Ors. V.
Kumar Sitaram Manjhi and Ors.7 The main contention in this case was whether the term property
in Section 16(3) included self acquired property as well as ancestral property of the parents. The
Supreme Court, repelling such contentions held that in the light of the express mandate of the
legislature there is no room for according upon such illegitimate children more rights than
envisaged. Doing so would amount to violence of the provision and would attempt to the court
relegislating on the subject under the guise of interpretation. This view of the Supreme Court was
followed in several other cases.8
Thus the Supreme Court by its narrow interpretation limited the scope of the section. Fortunately,
successive decisions of the same court held the view to be narrow and even provided reasons to
justify the same. In the case of Revansiddappa & Ors v. Mallikarjuna & Ors 9 the Supreme Court
stated that the section restricted the rights of such illegitimate children with respect to property
other than that of their parents. However, the said prohibition does not apply to the property of
the parents. Clauses (1) and (2) of Section 16 expressly declare that such children shall be
legitimate. If they have been declared legitimate, then they cannot be discriminated against and
they will be at par with other legitimate children, and be entitled to all the rights in the property
of their parents, both self-acquired and ancestral.

The constitutional validity of Section 16(3) of Hindu Marriage Act was challenged before this
Court and upholding the law, this Court in Parayankandiyal Eravath Kanapravan Kalliani Amma
(Smt.) and Ors. v. K. Devi and Ors.10, held that Hindu Marriage Act, a beneficial legislation, has
to be interpreted in a manner which advances the object of the legislation. The Court also
recognized that the said Act intends to bring about social reforms and further held that

7 Jinia Keotin and Ors. v. Kumar Sitaram Manjhi and Ors, (2003) 1 SCC 730

8 Neelamma and Ors. v. Sarojamma and Ors. (2006) 9 SCC 612, Bharatha Matha and Anr. v. R. Vijaya
Renganathan and Ors., AIR 2010 SC 2685

9 Revansiddappa & Ors v. Mallikarjuna & Ors, (2011) 4 SCR 675

10 Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt.) and Ors. v. K. Devi and Ors. (1996) 4
SCC 76
conferment of social status of legitimacy on innocent children is the obvious purpose of Section
16. Thus through a series of legislations the Supreme Court interpreted the section in the light of
its true object which is to protect innocent children from the status conferred to them by society
thereby promoting their interests.

11
In the case of Revansiddappa & Ors v. Mallikarjuna & Ors the Supreme Court elaborated on
the crux of the amendment in Section 16(3), The Court has to remember that relationship
between the parents may not be sanctioned by law but the birth of a child in such relationship has
to be viewed independently of the relationship of the parents. A child born in such relationship is
innocent and is entitled to all the rights which are given to other children born in valid marriage.
Thus, under Hindu Law the illegitimate children are deemed to be legitimate and are granted a
right to inherit the property of their parents. This is the current legal position on right to
inheritance as upheld in the above mentioned case and has been followed in several other
decisions.12

MUSLIM LAW

In the Muslim law, as in other systems of law, parentage involves certain rights and obligations.
By and large there are two modes of filiations known to the law: as a rule the law treats the
natural father as the father of the child; sometimes, however, adoption leads to the result that
someone who is not the father of the child acquires rights similar to those of the father.13
Adoption is not recognised in Islam14, as it was disapproved by the Quran. In addition to filiation
the other form is acknowledgement of paternity. The peculiarity of Muslim law is that in

11 Revansiddappa & Ors v. Mallikarjuna & Ors, (2011) 4 SCR 675

12 Kanthamma v. K. Shettappa and Ors, 2014(1)RCR(Civil)573

13 Mulla, Principles of Mahomedan Law, (20th ed., Lexis Nexis Butterworths Wadhwa, 2013)

14 Muhammad Allahdad v. Muhammad Ismail , (1888) 10 All 289


certain cases where it is doubtful whether a person is the child of another, the acknowledgment
of the father confers on the child the status of legitimacy. 15
What is important to know is the difference between legitimacy and the process of legitimation.
Legitimacy is the status which results from certain facts. Legitimating is a proceeding which
creates the status of legitimacy which did not exist before and in the proper sense of term, there
is no legitimation in Muslim law.16
Acknowledgement of paternity or Iqrar is a kind of legal evidence. It is practically the most
conclusive and un-controvertible means of creating an obligation on the person who makes it. In
Muhammad Allahdad v. Muhammad Ismail,17 the Court observed-
Where the paternity of the child that is, his legitimate descent from his father cannot be proved
by establishing a marriage between his parents and at the time of his conception of birth, Muslim
Law recognized acknowledgement and legitimate descent can be established as a matter of
substantive law for purposes of inheritance.
The doctrine of acknowledgement or iqrar confers a status of legitimacy on a child whether son
or a daughter. Mulla explains the same in Section 342 of Principle of Mohamedan Law. The
much followed case on the doctrine of acknowledgement is the decision of the Privy Council in
Sadik Hussain Khan v. Hashim Ali Khan,18 wherein it was established that in cases of uncertainty
of legitimate descent, an acknowledgement by the father raises the presumption of legitimacy
unless the other side can prove that the child whose paternity was acknowledged was of
illegitimate descent.
This doctrine can be invoked only where the factum of marriage or the exact time of marriage
has not been proved. It is based on the assumption of a lawful union between the parties of the
acknowledged child. The doctrine of acknowledgement however cannot be where the lawful
union between the parents of the child is not possible as in the case of incestuous intercourse or
adulterous connection. The doctrine is also not applicable where the marriage necessary to render
15 Kutty, Faisal, Islamic Law and Adoptions (June 20, 2014)

16 Syed Habibur Rahman v. Syed Altaf Ali, AIR 1922 PC 159

17 Muhammad Allahdad v. Muhammad Ismail, (1888) 10 All 289

18 Sadik Hussain Khan v. Hashim Ali Khan, AIR 1916 PC 27


the child legitimate is disproved. An acknowledgement need not necessarily be express. It may
be presumed from the treatment and conduct leading to an inference of acknowledgement. It is
an essential condition to the validity of an acknowledgement that the physical relation of father
and child should not be a matter of impossibility. The presumption of paternity arising from
acknowledgement can be rebutted by proof that physical relationship is a matter of impossibility.
In a decision by the Privy Council19 it stated that where there is a question of the existence of a
marriage between the parents, something more than the acknowledgement of paternity is
required. This principle has also been utilized in the case, Abdool Razack v. AGA Mohomed
Jaffer Bindaneem20, where Lord Macnaghten states the following-

On the other hand, where no marriage is shown to exist or where the concubine is not a slave
concubine, the mere admission of paternity is not enough for the purpose of affording proof of
legitimacy; the treatment must be such as to convey the fact that the child is acknowledged not
merely as the off-spring of the father but as his legitimate offspring.
Thus where there is a doubt regarding the existence of marriage then mere acknowledgement of
paternity is not sufficient. But in cases where the marriage is irregular or voidable, the
acknowledgement of paternity by the father, provided the same is valid, is sufficient proof for the
legitimation of the childs status. Under Muslim law illegitimate child has no right of inheritance
from either of the parents under both Shia and Sunni schools though such children can claim
maintenance from mother only under Sunni law upto the age of seven years.

RIGHT TO INHERIT PROPERTY


Under Muslim Law, the illegitimate child has no right to inherit property from the father. Under
the Hanafi law the mother and her illegitimate children have mutual rights of inheritance. The
illegitimate child inherits not only the property of its mother but also the property of all other
relations with whom it is related through the mother. In Pavitri v. Katheesumma 21Vaidiaalingam

19 Fatima Binti Hafidh v. The Administrator-General, Zanzibar Protectorate, AIR 1949 PC 254

20 Abdool Razack v. AGA Mohomed Jaffer Bindaneem, (1894) 21 Ind App 56


J. held, "Mohammadan law appears to impose no burden upon the natural father of an
illegitimate child..."
Muslim Law also does not confer any right to maintenance to the illegitimate child, though the
Hanafis recognize the obligation to nurture the child till age 7. But such children can seek
remedy under Section 125 of the Cr.PC which should ensure that all such illegitimate children
are maintained by their parents. The same has been recognized by the Courts in several cases.22

CHRISTIAN LAW

The rules concerning the right to property of Christian children are contained in the Indian
Succession Act, 1925. Therefore the following discussion on the right to property of Christian
illegitimate children shall be based on the relevant provisions of the above-mentioned Act.

RIGHT TO PROPERTY OF ILLEGITIMATE CHILD:

There is nothing in the Act that speaks of an illegitimate child's right to property but in various
Sections of the Act an illegitimate child's claim to be even a child (within the strict meaning of
the term "child") is negated. An in-depth study of Part IV of the Act, which deals with
'consanguinity' reveals that the Act contemplates only those relations which the law recognizes,
i.e., relations flowing from lawful wedlock.

Section 37 which says, "where the intestate has left surviving him a child or children, but no
more remote lineal descendant through a deceased child, the property shall belong to his
surviving child, if there is only one, or shall be equally divided among all his surviving children",
also points out to the proposition that the word child does not include an illegitimate child.

Batchelor J. opined in Smith v. Massey that, " since the Act speaks of certain relations, without

21 Pavitri v. Katheesumma, AIR 1959 Ker 319

22 Sukha v. Ninni, AIR 1960 Raj 163; Pavitri v. Katheesumma, AIR 1959 Ker 319
more, I infer that the only relations contemplated are those which the law recognizes. There can
be no doubt that in an English Act of Parliament the word "child" always applies to a legitimate
child.... if the argument were conceded, a bastard would share equally with a son - i.e., a
legitimate son, he being the only son known to our law - and this result appears to me wholly
repugnant and impossible." Therefore, in this case, the son of one of two illegitimate daughters
of the same parents was not deemed to be a nephew of the other.

In the case of Sara Ezra, a contention was advanced that the word 'child' in Section 37 includes
an illegitimate child, and this contention was based upon Section 8 of the Act, which speaks of
an illegitimate child. It was argued that the reference to illegitimate child in Section 8 was an
indication that where the word 'child' was used without qualification as in Section 37, it included
children, both legitimate and illegitimate. In rejecting this contention Panckridge J. held that "the
word child does not include an illegitimate child. Words defining relations in the Act refer to
relations flowing from lawful wedlock."

Here Panckridge J. referring to Smith v. Massey, pointed out that, "This was a decision of 1906
and the present Act was passed in 1925. The ordinary rule for interpretation of statutes, therefore,
must apply, namely that where words or expressions in a statute are plainly taken an earlier
statute in pari materia and have received judicial interpretation, it must be assumed that the
legislature was aware of such interpretation and intended it to be followed in later enactments."

Section 100 of the Act, which falls under the Part dealing with 'Testamentary Succession', says,
"Words expressing relationship denote only legitimate relatives or failing such relatives reputed
legitimate: In the absence of any intimation to the contrary in a will, the word 'child', the word
'son', the word 'daughter', or any word which expresses relationship, is to be understood as
denoting only legitimate relative, or, where there is no such legitimate relative, a person who has
acquired, at the date of the will, the reputation of being such relative."

Here too, the illegitimate child is deprived of the share in a property, which is to be divided as
stated in the will, unless there is a contrary intention of giving such a right to an illegitimate
child.
The contrary intention, namely, that the gift is intended to be taken by the illegitimate relative,
has been given effect to in the following cases: Where the testator's wife is post child bearing at
the date of the will and has no legitimate children, a gift to his children would refer to his
existing children illegitimate. If the gift, however, is to children in the plural and there is only
one legitimate child and several illegitimate children known to the testator, the latter will be
included to satisfy the language of the bequest. In a gift to the children born and to be born,
where at the date of the will there were only legitimate children known to the testator, they will
take. Where the testator made gifts to several persons described as cousins and nieces and some
of the so-called cousins are illegitimate, the proper inference is, when the residue is given under
the description 'relatives' therein before named that the illegitimate cousins were intended to be
include in the word relatives.

Thus in the case of a will by a bachelor, his children must mean illegitimate children as he can
have no other. So also the gift to the children of A by B who are within the prohibited degrees
must necessarily mean illegitimate children. In the same way, where a testator knows that A is
not legitimately married to B and then speaks of children of A, he must be taken to intend the
children of that illegal union. But the above rule does not apply if it does not appear that the
testator knew that A and B were not lawfully married. Therefore, where an unmarried person
gave certain property to his mistress S and to her sons by him in these terms: the property is
given to S for her life and after her death her sons and heirs of me shall come into possession of
the property. It shall be no concern of mine"; held that the provision that the property was to be
no concern of the testator showed that the illegitimate sons were meant and that the property
should go to them after the death of the mistress.

Where both legitimate and illegitimate relatives exist, in a bequest to a relative described as
being of certain degree of relationship, if a legitimate relation of that degree exists, oral evidence
is inadmissible to show that an illegitimate relation whose reputed relationship is of the same
degree, is the person meant.
There is no doubt that the language of Section 100 allows wholesome application of English
rulings and the rules and principles laid down in them. The section is perfectly clear that a person
described with reference to his relationship, must be a legitimate relative except when either
there is a contrary intimation in the will or that relative being illegitimate has acquired the
reputation of being 'such a relative' and there is no legitimate relative to fill in that description.
The question whether other conditions under which illegitimate children and relatives have been
allowed to come in under descriptions of relationship would apply to the Indian Law under this
section is not very easy to answer.

But if the strict literal construction of the section is followed there does not appear to be any
room for any distinction or differentiation, which is not indicated by the section itself. The
expression 'such relative' at the end of the section may mean such legitimate relative and would
make the section to apply to an illegitimate relative only when the illegitimate relative has
acquired the reputation of a legitimate relation. That however does not seem to be the intention
of the Legislature as shown by the illustrations to this section, which are based upon the English
law.
Section109says,

"Where a bequest has been made to any child or other lineal descendant of the testator, and the
legatee dies in the lifetime of the testator, but any lineal descendant of him survives the testator,
the bequest shall not lapse, but shall take effect as if the death of the legatee had happened
immediately after the death of the testator, unless a contrary intention appears by the will."
It is therefore, submitted that, the phrase 'any child or other lineal descendants' in this section
does not include an illegitimate child. It is well established by authority that illegitimate children
are not included in the term 'child' in deeds or other documents unless some repugnancy or
inconsistency would result from their exclusion.

In Swaine v. Kennerly, Lord Eldon, L.C., said, "the will itself must prove that illegitimate
children are included." The general rule is that an illegitimate child is included in the term 'child'
only when there is a designatio personae. In the absence of any indication in the language of this
section it is proper to conclude that the child or other lineal descendant cannot be held to
embrace an illegitimate child or descendant.
In the present case it was therefore held by Agarwalla J. that, "while the terms of the will show
that the testator intended to provide for illegitimate son, it does not go further than that, or show
that he intended to provide for the descendants of his illegitimate son."

The term child as used in this Act, does not include illegitimate children. Section 37 of the Act
specifically precludes illegitimate children from inheriting property of the father. But this does
not restrict such children from claiming maintenance under Section 125 of the Cr.PC. Similar to
Hindu and Muslim Law, the custody of the child is solely with the mother and her relations. 23The
putative father has no say in this matter. This is provided in Section 8 of the Indian Succession
Act. Through several decisions of the Court, we can observe that if the two parents have co
habited for a long period or if the man treats the woman as his wife, then the children are
considered legitimate. This was held in the case of Rameshwari Devi v. State of Bihar and
Vidhyadhari and others v. Sukhrana Bai and several other cases.
Thus under Christian Law, illegitimate children are excluded from right to inherit property of the
parents but are granted a right to maintenance under the secular law i.e. Section 125 of the
Cr.PC.

CONCLUSION:
Children born illegitimate, irrespective of the current progressive society suffer social stigma and
this has an impact on their status in society. Society, in countries like ours, still discriminates
against such children. Even with the changes in the law, due to the influence of deep set religious
thinking and prejudices that influence our behavior, the Indian society is not very accepting
towards such illegitimate issue. Added to such trauma it seems unfair that such children are not
granted the right to succeed to their parents property. Fortunately, the Courts through their
decisions have expressed concern and sufficiently spoken about how they should not be unfairly

23 Mishra Archana, Adopted and Illegitimate Child Under Indian Christian Law: Revisiting Inheritance
Rights (January 17, 2015). Available at SSRN: http://ssrn.com/abstract=2551287
punished for the acts of their parents. In the case of Revansidappa v. Mallikarjuna & Ors the
Supreme Court expressed its sympathy for such children.
The Hindu Law provides sufficient protection for the rights of such children. But other personal
laws like Muslim Law or Christian Law are not so elaborate. As observed earlier, Muslim Law
restricts it to property of the mother and Christian Law does not give any such rights. It was
considered that debarring the illegitimate child from inheriting the property of its parents would
deter further generations from entering into a sexual relationship outside marriage and would
enforce a strict regime of proper sexual mores in society. However, trends and statistics have
shown that the problem of illegitimate births in the country has been increasing at an alarming
rate; hence the above argument to justify the exclusion of illegitimate children from inheriting
property of parents cannot be bought and falls flat.
This issue requires immediate attention and proper legislation to remedy the anomalies in law
and something must be done to solve the problem of illegitimacy in India by conferring rights of
property and maintenance on them. It is, therefore, an urgent need to analyze the various
provisions relating to the position of illegitimate children - their right to property and their right
to maintenance - under various personal laws in India in order to avoid confusion regarding the
same. A viable remedy in this situation could be provision of secular laws relating to inheritance
to avoid confusion between the personal laws. The implementation of a uniform secular law to
protect the rights of such children will ensure that there is no discrimination against such
persons, legally as well as socially. This will correct the various differences in the personal laws.

BIBLIOGRAPHY

1. Dr. Poonam pradhan saxena, Family law lectures Family law II, Third edition 2011,
Lexis Nexis publication.
2. Justice K Kannan, THE INDIAN SUCCESSION ACT, 11th edition, Lexis
Nexispublication.
3. Kusum, Rights and status of illegitimate children, Indian Law Institute.
4. Hindu Succession Act,1956.
5. Indian Succession Act,1925.