92

INTERNATIONAL JOURNAL OF RESEARCH AND

ANALYSIS VOLUME 2 ISSUE 1

2014

RIGHT OF MAINTENANCE TO AN ILLEGITIMATE CHILD: A BRIEF REVIEW OF

INDIAN LAW

*Avishek Pradhan

INTRODUCTION

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

- Leon R. Yankwich1

ILLEGITIMACY

Illegitimacy is a concept which means not allowed by the prevailing values or born of

parents not married to each other. An illegitimate child has to bear legal and sociological

consequences. So, who is an Illegitimate Child? An Illegitimate Child is one who has the

certainty of his/her mother but no certainty of his/her father. Another question that arises here is

what for a child suffers only due to uncertainty of the father? Perhaps the dominance of the

Patriarchal system of society over Matriarchal system all over the world is the main reason for

the suffering of the illegitimate child. The ancient Latin dictum, "Mater semper certa est" ("The

mother is always certain", while the father is not) says it all.

LEGITIMATE & ILLEGITIMATE CHILDREN

IN INDIA

The Indian laws had classified children into two major types i.e. Legitimate and Illegitimate.

The Legitimate Children are the offsprings of valid marriages while illegitimate children are

offsprings of the marriage that is invalid, irregular or void. There are no problems regarding the

legal rights of a legitimate child while there do arise a lot of problems when rights of an

illegitimate child are concerned.2 Recently, regarding the rights of illegitimate child the Madras

High Court in the case of Thrumurthi Ranayammal v. Thrumurthi Muthamal3 created some

confusion, but the same was removed by the Parliament by means of Marriage Laws

1 Leon Rene Yankwich (September 25, 1888 – February 9, 1975) was a United States federal judge. 2 http://indiankanoon.org/doc/4639/ (Visited on 12th October 2013) 3 AIR 1974 Mad 321

93

INTERNATIONAL JOURNAL OF RESEARCH AND

ANALYSIS VOLUME 2 ISSUE 1

2014

(Amendment) Act, 1976 that introduced a new concept of rights of illegitimate child. According

to this section, a child born out of a void, valid or voidable marriage will be considered to be

legitimate child of that couple notwithstanding the regularity or irregularity of marriage on any

ground.

PERFECT AND STATUTORY LEGITIMACY

A child is said to be perfectly legitimate when he/she is born out of a valid or a regular

marriage. In case of a statutory legitimate child he/she is one who is offspring of an irregular or

invalid marriage. After the commencement of Section 16 of the Hindu Marriage Act, 1955 this

concept of Statutory Legitimacy has been drawn up.

ILLEGITIMACY ACCORDING TO INDIAN EVIDENCE ACT, 1872

Section 112 of the Indian Evidence Act defines illegitimacy of a child by saying that the fact

that any child was born during the continuance of a valid marriage between his mother and any

man, or within two hundred and eighty days after dissolution of marriage and the mother

remained unmarried, till then shall be conclusive proof that he is the legitimate son of that man,

unless it can be shown that the parties to the marriage had no access to each other at any time

when he could have been begotten.4

IN THE WEST

In common law, legitimacy is the status of a child born to parents who were

legally married to each other; and the child was conceived before they got legally divorced.

Conversely, illegitimacy (or bastardy) is the status of a child born outside marriage. Illegitimacy

also raises the question regarding right of maintenance of child and mother from the putative

father.5 According to Friedmann in his ‘Law in a Changing Society’, the very least the law can

do is to minimize the misfortunes of children born beyond wedlock. In the first place, it can, and

should, encourage the legitimacy of children by subsequent marriage. Legitimacy is now

recognized in number of laws. But this is subject to considerable limitations. Under Scottish

4 The Indian Evidence Act, 1872 5 http://en.wikipedia.org/wiki/Legitimacy_(law) (Visited on 11th October 2013)

94

INTERNATIONAL JOURNAL OF RESEARCH AND

ANALYSIS VOLUME 2 ISSUE 1

2014

Law, for instance, a child could not be legitimated by the subsequent marriage of his parents,

unless they were free to marry at the time of its conception. In England, the position is the same

except that the relevant date is that of the birth of the child. In the recent Report of the Royal

Commission on Marriage and Divorce, a minority of seven members argued persuasively that

this differentiation stigmatized children for the shortcomings of their parents.6

SOCIAL PERSPECTIVE OF AN ILLEGITIMATE CHILD

ANCIENT INDIA

Ancient India has a very hypercritical view regarding an illegitimate child. The various

religious texts in the Hindu mythology are abundant with great people who were illegitimate

children and had no paternal certainty. Let us take the example of “The Mahabharata7”. Being a

popular epic it is like a mirror of the society and gives an insight into Indian society’s (mainly

Hindu’s) attitude towards life. The epic also plays a significant role in conditioning the Indian

mind as it is widely read (may be in fragments) and watched over television.

Illegitimate children in the society are often stigmatized. The treatment given to the

illegitimate children in the epic is indicative of the way the Hindu society treats its illegitimate

children. There are a lot of examples of illegitimate children who were great people in the past

and who were maltreated by the ancient society and were treated as objects just to serve the

legitimate.

1. Vyasa

Vyasa was the illegitimate child of sage Parashara and Satyavati. He was born of pre-marital

relationship of his parents. Vyasa’s importance in the epic is seen when he was asked to be the

king of Satyavati’s kingdom. Though, this was done not with bona fide intention by Satyavati

but it was done as King Shantanu and his two sons Chitrangad and Vichitravirya had died

leaving no successor to the throne. As the kingdom was without successor, Satyavati first asked

Bhishma to perform Niyoga (levirate) on the widows of Vichitravirya and Chitrangad in order to

have heir to the throne. When Bhishma refuses, Satyavati summoned Vyasa. As no legitimate

6 Friedmann, W., Law in a Changing Society, Page 210 7 The Mahabharata or Mahābhārata is one of the two major Sanskrit epics of ancient India, the other being the

Ramayana. Its author is Vyasa.

95

INTERNATIONAL JOURNAL OF RESEARCH AND

ANALYSIS VOLUME 2 ISSUE 1

2014

son was left, Illegitimate was summoned as a matter of necessity! After this event Vyasa’s

illegitimate origin was not given much importance in the entire epic. He was treated as a normal

legitimate child. So can we say that if an illegitimate child is found to come in some useful

purpose then is his illegitimacy can be just ignored? Does the society acknowledge the

illegitimate children when they no longer pose a threat to their reputation? Probably the

transgression of young age loses its stigma when one grows old and if the illegitimate son proves

to be worthy, the intensity of illegitimacy goes down.

2. Karna

Karna was Kunti’s illegitimate child and he was not fortunate enough to receive the same

humane treatment that Vyasa received. Throughout the epic Karna was treated as a second class

citizen because of his unknown origin. Firstly he was deprived of his education by Dronacharya

as he refused to take him as his pupil. Secondly he was always reminded in the epic that he was a

son of a charioteer and was found in a basket in a river. This shows that his illegitimate origin

was considered a big shame. Karna killed a cow of a Brahmin mistaking it as a wild animal. The

epic seems to be turning against Karna. He was cursed by Parshurama and by the Brahmin. He

was deprived of his natural armor by the sun God. He was slain when he was helpless. Did the

epic send a message that this is what happens to the illegitimate child if he aspires to a high

position? On the other hand Vvasa and Vidura receive much better treatment. Does it indicate

that an illegitimate child of a Brahmin sage can be given better treatment but not of others? The

Brahminical influence on the epic is obvious. Karna boasted of being capable of killing Arjuna,

in spite of his twice being defeated by Arjuna. He gave away his natural armor, even though he

knew that it may cost him his life. Was he seeking glory in death? Had he gone into the mindset

that at least after his death people will glorify him as a great warrior and donor? Was it an

attempt of washing away the stigma by blood?8

8http://s3.amazonaws.com/academia.edu.documents/31258460/Illegitimate_children_in_the_Hindu_Society.docx?A

WSAccessKeyId=AKIAI5BFST3KI667TFIQ&Expires=1383292693&Signature=EKPmbEBhZMWhYrhYD06W8J

oNdmI%3D ( Visited on 12th October 2013)

96

INTERNATIONAL JOURNAL OF RESEARCH AND

ANALYSIS VOLUME 2 ISSUE 1

2014

3. Ghatotkacha

Another important illegitimate child in the epic is Ghatotkacha, the half-caste born out of

the union of the Pandava prince Bhima and the Rakashasi Hidimba. He was a very important

character in the epic as he saved Arjun’s life. Mahabharata is an epic which show the selfishness

and the orthodox inhumane treatment that one could give to a child born beyond wedlock. When

in the end the battle was over in the epic Lord Krishna comes to Bhima and tells him that if

Ghatotkacha had not given up his life to save Arjun then he would have killed him himself with

his own hands because according to him “Ghatotkacha was a sinful soul and a shame to the

Brahminical Society”. These statements given by Lord Krishna and the fact that there is no

instance of Bhima lamenting over Ghatotkacha’s death nor his Rakashasi mother nor any other

Rakashasi women lamenting over the death of their husbands or children in the entire epic

proves that the author of Mahabharatha had an indifferent attitude towards the feelings of these

group of people.

We can see that in the past the illegitimate children were treated as a dirt and their status in

the society was not as grand and shiny as that of the legitimate child. The fact that many of them

were treated differently due to their contributions to the society prove the fact that the society

reacted differently with different illegitimate children and so did the child.9

MODERN INDIA

The mindset of the Indian people have changed a lot and now instead of thinking in terms of

theology the Indians have now adopted rationality as the new key which could only open the

door of a bright Indian future. The various judgments of the apex court in our country regarding

cases involving rights to an illegitimate child have not only been based on substantial law but

also on the basis of humanity and sheer benevolence to that child. In one such case in the year

2011, the Supreme Court of India held that the illegitimate children were not only entitled to a

share in the self-acquired property of parents but also in ancestral property.

9 Ibid

97

INTERNATIONAL JOURNAL OF RESEARCH AND

ANALYSIS VOLUME 2 ISSUE 1

2014

A bench of Honorable justices G. S. Singhvi and A. K. Ganguly said in a judgment that such

children cannot be deprived of their property rights as what was considered illegitimate in the

past may not be so in the present changing society. It further said that the court has to remember

that relationship between the parents may not be sanctioned by the law but the birth of the child

in such a relationship needs to be viewed independently of the relationship of parents.

According to the auspicious bench, “A child born due to such a relationship is innocent and

is entitled to all the rights which are given to other children born of valid marriage. Right to

property is no longer fundamental but it is a constitutional right and Article 300A contains a

guarantee against deprivation of property right save by authority of law,”10

ILLEGITIMATE CHILD- RIGHT TO PROPERTY

The case Rohit Shekhar v. Narayan Dutt Tiwari & Others has stirred up many questions

that remain unanswered in the laws governing Hindu social relationships and inheritance when

the paternal link of Congress leader ND Tiwari with Rohit Shekhar was proved after a DNA test.

One important amendment was carried out in 1976 to Section 16 of the Hindu Marriage Act,

1956, conferring the right of inheritance to father's property on children born out of void or

voidable marriages, whether or not so declared by a court of law. But marriage, be it void or

voidable, between a man and woman was a pre-condition to bestow right on their progeny, even

if illegitimate in the eyes of society, to lay claim over the father's property.

The Supreme Court in Jinia Keotin v. Kumar Sitaram Manjhi11

said, "Section 16 of the

Act, while engrafting a rule of fiction in ordaining children, though illegitimate, to be legitimate,

notwithstanding the marriage was void or voidable, chose also to confine its application, so far as

succession or inheritance by such children are concerned, to the properties of the parents only."

This meant that the illegitimate child could inherit the property of his father only and had no

right of inheriting the ancestral property of his father which a legitimate child could. In case of

live-in relationships where there is no marriage between the couple, the honorable Supreme

Court of India has said that it would presume that the couple in a live-in relationship would be

10 This is taken from an article by an anonymous author from a reputed newspaper of the country “The Times of

India”: TNN Apr 3, 2011, 05.02am IST, The Times of India, Illegitimate kids have stake in property 11 2003 (1) SCC 730

98

INTERNATIONAL JOURNAL OF RESEARCH AND

ANALYSIS VOLUME 2 ISSUE 1

2014

husband and wife if they had been living under the same roof for a very long period of time and

if they were known in the society as husband and wife.12

In S. P. S. Balasubramanyam v.

Sruttayan13

, the Supreme Court had said, "If a man and woman are living under the same roof

and cohabiting for a number of years, there will be presumption under Section 114 of the

Evidence Act that they live as husband and wife and the children born to them will not be

illegitimate."

The condition for the child born out of a Live-in relationship to be treated as a legitimate

child and not as an illegitimate child is that the live-in couple should have been living together as

a husband and wife as recognized by the society and also living together for a long period of

time. If these pre-requisites are not there and the couple are having a ‘walk in and walk out

relationship’ then it is not possible for him/her to be tagged as a legitimate child as stated by the

Honourable Supreme Court in the judgment given by it in the case of Madan Mohan Singh v.

Rajni Kant14

. Talking of the rights of a child born out of the walk in and walk out relationship,

where a DNA test proves the biological relationship between the child and the father though the

mother was in a subsisting legal married relationship with another man, the court is yet to answer

and solve this problem. Even if one applies the 1976 amendment to Hindu Marriage Act in the

widest possible amplitude, then too the mother of the child must first claim marriage or

sufficiently long relationship, without her having access to any other man, for the law to bestow

right of inheritance on the offspring to the father's property.

In the case of Dr. Vijay Mohan Arbat v. Kashi Rao Rajaram Sawai15

the Honourable

Supreme Court said that the Section 125 of Code of Criminal Procedure confers a duty on the

child to maintain his biological father or mother and it does not absolve a married daughter of

this responsibility. In Kamti Devi case16

, the Honourable Supreme Court said, "The result of a

genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from

the conclusiveness of Section 112 of the Evidence Act, for example, if a husband and wife were

living together during the time of conception but the DNA test revealed that the child was not

12

D. Mahapatra, TNN Aug 27, 2012, 03.20AM IST, How legitimate is an illegitimate child’s right to property?,

The Times of India 13 AIR 1992 SC 756 14 (2010) 9 SCC 209 15 1987 (2) SCC 278 16 2001 (5) SCC 311

99

INTERNATIONAL JOURNAL OF RESEARCH AND

ANALYSIS VOLUME 2 ISSUE 1

2014

born of the husband, the conclusiveness of law would remain un-rebuttable." This may look hard

from the point of view of the husband who may be compelled to bear the fatherhood of a child of

which he may be innocent. But even in such a case, the law leans in favour of the innocent child

from being bastardized if his mother and her spouse were living together during the time of

conception.17

Hence what can be said is that there is no drastic change in the Indian Society but certainly

there are changes that are taking place.

LEGAL PERSPECTIVE OF AN ILLEGITIMATE CHILD

SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE, 1973

According to Section 125 of the Code of Criminal Procedure, 1973 an illegitimate child

can get maintenance from his father or mother if he/ she is not able to maintain himself/ herself

whether married or not. He/ She if has attained majority, and by chance due to any physical or

mental abnormality or injury is unable to maintain himself/ herself then can also get maintenance

under this section. This is the main section of the Indian Law that is a boon for illegitimate

children (who cannot maintain himself/ herself) as it provides quick and legitimate maintenance

to illegitimate children.18

SECTION 20 OF THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

According to this section of the Hindu Adoptions and Maintenance Act, 1956 any

Legitimate or illegitimate child can or has the right to maintenance from either of his parents so

long they are minor and they are not in a situation to maintain themselves.19

The dictum reads as

“Maintenance of children and aged parents:

1) Subject to the provisions of this section a Hindu is bound, during his lifetime, to maintain his

or her legitimate or illegitimate children and his or her aged or infirm parents.

2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so

long as the child is a minor.

17 Ibid 10 18 The Code of Criminal Procedure, 1973 19 The Hindu Adoptions and Maintenance Act, 1956

100

INTERNATIONAL JOURNAL OF RESEARCH AND

ANALYSIS VOLUME 2 ISSUE 1

2014

3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is

unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable

to maintain himself or herself out of his or her own earnings or other property.”

SECTION 16 OF THE HINDU MARRIAGE ACT, 1955

According to this section of the Hindu Marriage Act, 1956 any child born out of a

valid/regular, invalid/irregular, void or voidable marriage shall be considered to be the legitimate

child of that couple. The fact that the marriage was in contravention of the laws does not change

the truth that the child was a legitimate child of the couple. The dictum reads as “Legitimacy of

Children of void and voidable marriages”:

1) Notwithstanding that marriage is null and void under section 11, any child of such

marriage who would have been legitimate if the marriage had been valid, shall be legitimate,

whether such child is born before or after the commencement of the Marriage Laws

(Amendment) Act, 1976 (68 of 1976)*, and whether or not a decree of nullity is granted in

respect of that marriage under this Act and whether or not the marriage is held to be void

otherwise than on a petition under this act.

2) Where a decree of nullity is granted in respect of a voidable marriage under section

12, any child begotten or conceived before the decree is made, who would have been the

legitimate child of the parties to the marriage if at the date of the decree it had been dissolved

instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree

of nullity.

3) Notwithstanding anything contained in sub-section (1) or sub-section (2) shall be

construed as conferring upon any child of a marriage which is null and void or which is annulled

by the decree of nullity under section 12, any rights in or to the property of a person, other than

the parents, in case where, but the passing of his 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.20

20 The Hindu Marriage Act, 1955

* Date of commencement 27-05-1976

101

INTERNATIONAL JOURNAL OF RESEARCH AND

ANALYSIS VOLUME 2 ISSUE 1

2014

ILLEGITIMATE CHILD’S RIGHT TO MAINTENANCE AND PROPERTY

ACCORDING TO THE HINDU COPARCENARY CONCEPT

If we are to speak about the rights of a son who is born beyond a wedlock or an

illegitimate child, then the various decisions given by various courts in our country comes to a

lot of help. One such case is the Sujata v. Krishna Prasad where the honourable court

observed; that though the children born out of void marriages are made legitimate, section 16(3)

of Hindu Marriage Act forbids the conferment of any right on them in the property of any

person, other than the parents. Therefore, the legitimatized son cannot get a share in the property

which belongs to coparcenary of which his father is a member and that the legitimatised son

should succeed to the property on the death of his parents.

IN CASE OF PARTITION OF A COPARCENARY PROPERTY:

There are two broad stem of schools that deals with the partition right of an illegitimate child.

The Mitakshara Law/School and

The Madras and Bombay School

According to the Mitakshara School of Legitimacy, a child born as a Perfect

Legitimate child or Statutory Legitimate child will have the right to ask for partition of the

ancestral/coparcenary property from his father during his lifetime and after his death to his

Grandfather.

According to the Madras and Bombay School, a child born as a Perfect Legitimate

child or Statutory Legitimate child will not have the right to ask for partition of the

ancestral/coparcenary property from the Father during his lifetime. But after his death he can ask

to his grandfather.

MUSLIM LAWS THAT REGULATE THE RIGHTS OF AN ILLEGITIMATE

CHILD

As far as Muslim marriage is concerned, there is no such process or method by which

some dignified status is granted over an illegitimate child. However, there are scope of

traditional Muslim law which grants the acknowledgement of legitimacy, but it is seen that the

102

INTERNATIONAL JOURNAL OF RESEARCH AND

ANALYSIS VOLUME 2 ISSUE 1

2014

idea of this management is not to legitimize an illegitimate child but for another purpose. Since a

Muslim marriage is a contractual obligation and not a sacramental duty, hence it is seen that

there are a lot of instances of invalid marriages. With this result legitimacy of the children born

out of such marriage is generally doubted. It is only because of this fact that Muslim law enables

a father to acknowledge the paternity of a son under certain legal situations. It may be noted that

under Muslim law a child to be legitimate must have been an offspring of a man and his wife or a

man and his slave. Rest all the children are treated to be illegitimate. They are off springs of

Zena, which means illicit connections. The acknowledgement must not be merely of sonship but

must be made in such a way that it shows that the acknowledgement meant to accept the other,

not only as his son but as his legitimate son. In other words under Muslim law only legitimate

sons can be subjected to acknowledgement and there is no rule which may confer the status of

legitimacy upon an approved illegitimate son.21

CONCLUSION

The Indian Society is a metaphysical society and so, it is going through a transformation stage

which consists of two broad categories of people with two distinct ideologies. One of the groups

believes in the orthodox methods of Hindu religion where having an illegitimate child is a taboo

and being one is a bigger stigma. They believe in purity of life and the practice of chastity. The

other group in the society consists of people who are rational and liberal in their outlook and do

not consider illegitimacy as a stigma. They do not blame an illegitimate child for his/her

existence instead blames the irresponsible couple. The laws in the society are also being

amended accordingly as the time and the situation demands. Therefore what we can say is that

the Indian Laws are the mirror image of the Indian Society.

21 This has been taken as a reference from the website http://indiankanoon.org

103

INTERNATIONAL JOURNAL OF RESEARCH AND

ANALYSIS VOLUME 2 ISSUE 1

2014

REFERENCES

Books:

Indian Evidence Act, 1872

The Code of Criminal Procedure 1973

The Hindu Adoptions and Maintenance Act, 1956

The Hindu Marriage Act, 1955

Articles:

The Times of India, TNN Apr 3, 2011, 05.02am IST, The Times of India, Illegitimate

kids have stake in property

D. Mahapatra, TNN Aug 27, 2012, 03.20AM IST, How legitimate is an illegitimate

child’s right to property?, The Times of India

Friedmann, W., Law in a Changing Society, Page 210

Websites:

http://indiankanoon.org/doc/4639/ (Visited on 12th October 2013)

http://en.wikipedia.org/wiki/Legitimacy_(law) (Visited on 11th October 2013)

http://s3.amazonaws.com/academia.edu.documents/31258460/Illegitimate_children_in_th

e_Hindu_Society.docx?AWSAccessKeyId=AKIAI5BFST3KI667TFIQ&Expires=13832

92693&Signature=EKPmbEBhZMWhYrhYD06W8JoNdmI%3D (Visited on 12th

October 2013)