The legality of a child in Hindu law depends on the validity of the marriage under Hindu Marriage Act. The Hindu Marriage Act applies to a person who is Hindu, Sikh, Buddhist or Jain by religion. Therefore, the illegitimacy criteria followed in Hindu, Sikh, Buddhist or Jain religions will be the same as followed in Hindu law.
Illegitimate means which is not authorized by law or which is contrary to law. Illegitimate child is a child who is not born out by lawful wedlock or who is born to the parents who is not married to each other in the eye of law. Illegitimate child is not just discriminated by the society but even the law in many ways. The illegitimate child never enjoyed equal right along with the legitimate child. But with the change in society’s behaviour the law was amended to incorporate the same. The concept of legitimacy stems from social consensus, in the view of which various social groups of people play a very important role. In various countries, law has been implemented and the legal position of illegitimate children has vastly improved.
In India, hitherto, the law did not recognize the rights of illegitimate child over their parent’s property. With the amendment of Section 16 of the Hindu Marriage Act, the law now has recognises an illegitimate child’s right over the parent’s property which means child born out of an illegitimate relationship, have equal rights like other legitimate child. The Legislature has taken a very progressive step by initiating this part with a view to remove certain social peculiarities in respect of the child born by a void marriage. The child born out of voidable or void marriages cannot inherit the property of their relatives.
The rights of illegitimate child are discussed under the following heads:
- Maintenance.
- Inheritance.
- Joint family property and partition.
Maintenance: – Under the Hindu Adoptions and Maintenance Act 1956, a Hindu is bound to maintain their illegitimate children during their life-time. The responsibility to maintain illegitimate children is upon both, the father as well as the mother. Not only the illegitimate son, but also an illegitimate daughter, is entitled to be maintained by her mother and father.This right of maintenance, however, extends only up to the era of minority. An illegitimate child is not entitled to be maintained by their parents after attained the age of majority. Such a child will also not be entitled to be maintained if she or he has ceased to be a Hindu by conversion to another religion. Under the Hindu Adoptions and Maintenance Act, an illegitimate daughter of a deceased Hindu, so long as she remains unmarried and an illegitimate son of a deceased Hindu so long as he is a minor are entitled to be maintained by the heirs of the deceased out of the estate inherited by them or by the person who take the estate of the deceased Hindu. Such a daughter or son however, will not be permitted to maintenance under the Act if she or he has ceased to be a Hindu by conversion to another religion. An illegitimate child who is Hindu can apply for maintenance from her or his father under the Code of Criminal Procedure.
Inheritance: – Under the Hindu Succession Act 1956 an illegitimate child is deemed to be related by illegitimate empathy to their mother and their legitimate descendants are deemed to be related by legitimate relationship to them and can therefore inherit from each other under this Act. An illegitimate child can inherit the property of mother or from illegitimate brother or sister. A mother can also inherit the property of her illegitimate child. The father has no right to inherit the property of illegitimate child.
Joint family property and partition: – Before passing of the Hindu Succession Act on the death of the father, an illegitimate son was entitled to succeed to his estate as a coparcener with the legitimate son of his father, and he was entitled for a partition against the legitimate son. Now an illegitimate son does not obtain any interest in the ancestral property of his father unlike a legitimate son does and he is also not entitled to enforce partition against legitimate son.A father during his lifetime can give him a share of his property which can be equal to that of the legitimate son.