hindu law 1 project

8/13/2019 Hindu Law 1 Project

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INTRODUCTION

There are no illegitimate children - only illegitimate parents.

- Leon R. Yankwich1

ILLEGITIMACY

Certainty of paternity has been considered important in a wide range of eras and cultures,

especially when inheritance and citizenship were at stake, making the tracking of a man's

estate and genealogy a central part of what defined a "legitimate" birth. The

ancient Latin dictum, " Mater semper certa est " ("The mother is always certain", while the

father is not) emphasized the dilemma.

WHO ARE LEGITIMATE & ILLEGITIMATE CHILDREN?

IN INDIA

Law has classified children into two categories, namely, the legitimate and illegitimate

children. The legitimate children are the outcome of a marriage valid in the eyes of Law

while those who are born out of wedlock or where the marriage is invalid, irregular or void

are said to be illegitimate children. As regards legitimate children there is no problem of their

legal rights but there do arise certain problems in case of illegitimate children. 2

I N ENGLAND

In common law, legitimacy is the status of a child born to parents who are legally married to

each other; and of a child conceived before the parents receive a legal divorce.

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

consequences of illegitimacy have pertained mainly to a child's rights of inheritance tothe putative father' s estate and the child's right to bear the father's surname or title.

Illegitimacy has also had consequences for the mother's and child's right to support from the

putative father. 3

1

Leon Rene Yankwich (September 25, 1888 February 9, 1975) was a United States federal judge. 2 http://indiankanoon.org/doc/4639/ 3 http://en.wikipedia.org/wiki/Legitimacy_(law)
http://en.wikipedia.org/wiki/Paternity_(law)http://en.wikipedia.org/wiki/Latinhttp://en.wikipedia.org/wiki/Mater_semper_certa_esthttp://en.wikipedia.org/wiki/Mater_semper_certa_esthttp://en.wikipedia.org/wiki/Mater_semper_certa_esthttp://en.wikipedia.org/wiki/Common_lawhttp://en.wikipedia.org/wiki/Childhttp://en.wikipedia.org/wiki/Marriagehttp://en.wikipedia.org/wiki/Fertilisationhttp://en.wikipedia.org/wiki/Divorcehttp://en.wikipedia.org/wiki/Inheritancehttp://en.wikipedia.org/wiki/Putative_fatherhttp://en.wikipedia.org/wiki/Estate_(law)http://en.wikipedia.org/wiki/United_States_federal_judgehttp://indiankanoon.org/doc/4639/http://indiankanoon.org/doc/4639/http://indiankanoon.org/doc/4639/http://en.wikipedia.org/wiki/Legitimacy_(law)http://en.wikipedia.org/wiki/Legitimacy_(law)http://en.wikipedia.org/wiki/Legitimacy_(law)http://en.wikipedia.org/wiki/Legitimacy_(law)http://indiankanoon.org/doc/4639/http://en.wikipedia.org/wiki/United_States_federal_judgehttp://en.wikipedia.org/wiki/Estate_(law)http://en.wikipedia.org/wiki/Putative_fatherhttp://en.wikipedia.org/wiki/Inheritancehttp://en.wikipedia.org/wiki/Divorcehttp://en.wikipedia.org/wiki/Fertilisationhttp://en.wikipedia.org/wiki/Marriagehttp://en.wikipedia.org/wiki/Childhttp://en.wikipedia.org/wiki/Common_lawhttp://en.wikipedia.org/wiki/Mater_semper_certa_esthttp://en.wikipedia.org/wiki/Latinhttp://en.wikipedia.org/wiki/Paternity_(law)


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VIEWS R EGARDING ILLEGITIMATE C HILD

ANCI ENT I NDIA

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

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

illegitimate children and had no paternal certainty. Let us take the example of The

Mahabharata 4. Being a popular epic it is like a mirror of the society and gives an insight into

Indian societys (mainly Hindus) a ttitude 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. The epic was composed and interpolated with many passages from 400 B.C. to

A.D. 400.

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. The project examines the treatments given to the illegitimate children in

the epic and the response of the children to stigmatization and discrimination.

Through the reading of the epic one can understand the trauma and humiliation that the

illegitimate children had to face in the society. The problem plagues the Hindu society in

general and is not unique for the people in the North East. But as there are large numbers ofHindu population in the North east, exploration of the treatment of the illegitimate children is

relevant. Humiliated and stigmatized, the illegitimate children also find out different defense

mechanism to negotiate this discrimination in the society. 5

1. Vyasa.

Vyasa, the illegitimate child was born out of the pre-marital relation of the sage Parashara

and Satyavati. Nothing is known about the early life of Vyasa, except that he was trained byhis father. He was suddenly brought into limelight to save his mothers kingdom from t he

crisis. King Shantan dies and also Chitarngad and Vichitravirya; the legitimate sons of

Shantanu and Satyavati. As the kingdom is without successor, Satyavati first ask Bhishma to

perform Niyoga (levirate) on the widows of Vichitravirya in order to have heir to the throne.

4 The Mahabharata or Mahbhrata is one of the two major Sanskrit epics of ancient India, the other being theRamayana. Its author is Vyasa.5This has been taken as a reference from the given link:

http://s3.amazonaws.com/academia.edu.documents/31258460/Illegitimate_children_in_the_Hindu_Society.docx?AWSAccessKeyId=AKIAI5BFST3KI667TFIQ&Expires=1383292693&Signature=EKPmbEBhZMWhYrhYD06W8JoNdmI%3D


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As Bhishma refuses, Satyavati summons Vyasa. As no legitimate son is left, Illegitimate is

summoned as a matter of necessity! Through this episode he is brought to light and later

receives a respectable treatment throughout the narration of the epic. He is portrayed as

composure of the epic and the grandfatherly figure. Does it indicate that Vyasas Sattvik

nature and his pursuit of spiritual knowledge had reduced/eradicated the stigma for being a

pre-marital child? But do all the pre-marital children get stigmatized in the epic? The epic do

not give a straight single answer. Satyavatis pre -marital son i.e. Vyasa is acknowledged,

though rather late, but Kunti is forced to abandon the pre-marital child Karna and only

acknowledges him after his death. Does the society acknowledge the illegitimate children

when they no longer pose a threat to their reputation? Or when the situation arises when there

are more important things to take care than reputation.

Vyasa do not have any political ambition and do not pose any threat to the claimant to the

throne. It is also likely that the social regulation were different for the Kshatriya princess

Kunti and different for the low caste Nishada girl Satyavati. It is likely that as Satyavati got a

marriage proposal from the royal family that her pre-marital son was thrown into oblivion to

project her as a virgin. He was brought to the light later on when much time had lapsed and

the pre-marital son had acquired a reputation of being a great ascetic. 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. 6

2. Karna.

In contrast to the respectable treatment given to Vyasa, Karna is constantly stigmatized for

being a Sutputra , i.e. son of a charioteer. Karnas birth is mytholized, obviously to hide the

sexual transgression of Kunti. But there is a murmuring in the epic that always surrounds

Karna. He is made aware that he was found floating in the river. Thus he seems to be unsure

of his identity. It is probably due to this confusion we find the traces of contradiction in him.

In some situations he appears to be extremely virtuous. He donates his natural armor, to keep

his vow of not refusing anything to the Brahmin. He also refuses to change side and switch

over to the Pandavas even if he is offered kingship. He also requests Krishna not to divulge

the secret of his birth to Yudhishthira, as Yudhishthira will then give away the kingdom to

Karna and Karna under the obligation of Duryodhana will hand over the kingdom to

Duryodhana. He also admits that Yudhishthira is better suited to become a king. But, there

6 Ibid


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are many dark spots on Karna like his instigation to Dushasana in the Sabha Parva to

disrobe Draupadi which is indicative that he did had a streak of going into frenzy and lose

control. While asking Dushasana to disrobe Draupadi, probably Karna was having his

revenge not only on Draupadi but all his anger against the Varna conscious discriminatory

establishment was directed towards Draupadi.

Karna promises Kunti that he will not kill any of the Pandavas except Arjuna even though he

knew that Kunti came to him out of desire of saving the Pandavas. In this he seems to have

gone rather overboard. Did he lack emotional control? He is going to war, to fight for

Duryodhana with the awareness that he will not kill his mortal enemy Bhima! Again personal

glory comes into play and personal sense of chivalry is more important! Was it is a result of

hunger for fame that led Karna towards his own destruction as well as the destruction ofmany others including Duryodhana. Due to the traumatizing experiences of childhood did he

lacked normal psychological balance?

Karnas sense of honor is also not above question. He tells a lie to Parshurama about his birth

to acquire sacred weapon. If he is magnanimous enough to spare the lives of the Pandavas

and also to give away his natural armor to Sun God, then why did he stoop so low as to tell a

lie about his birth to Parshurama? Probably he believed that Parshurama will not find out!

But is it an honorable thing to tell a lie for personal benefit, if you feel that you can escape?

Real virtues have intrinsic values and do not entirely depend on the acknowledgement from

others. Did his act of excessive charity and chivalry were projections to mask the flaws in his

character? Did he develop this flaws due to the peculiar circumstances in which he was born,

abandoned and stigmatized throughout the life. Desire to possess a power to either take or

spare somebodys life is also indicative of being power hungry. 7

Karna was neglected and humiliated by the Varna conscious establishment. Dronacharya do

not accept him as pupil and probably Karna remained hungry for the being loved and adored

throughout childhood. The neglect and humiliation of early years has a profound influence on

his personality and we find him restless. Karna becomes extremely devoted to Duryodhana,

as Duryodhana gave him the respect and position in the society. The debt that Karna always

carried in his mind! Even though Karna had carried out Digvijaya and conquered many kings

for Duryodhana and repaid the debt multifold. He could never come out of the shadow of

Duryodhana. He still considered him to be indebted to Duryodhana and finally makes an

7 Ibid


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ultimate sacrifice for him. He knew that he was fighting on the wrong side and also he is

going to lose. His natural talent of a warrior does not let him remain in the background but

the society is not willing to acknowledge him as a warrior of first degree.

Karna kills a cow of a Brahmin mistaking it as a wild animal. The epic seem to be turning

against Karna. He is cursed by Parshurama and by the Brahimin. 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 high position? On

the other hand Yvasa 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.

But Vyasa and Vidura do no t have a political ambition. Karnas Rajsik desire of being

acknowledged as the greatest archer probably provokes a negative reaction from the society

in general and from the ruling establishment in particular. In contrast the society in the epic is

more accommodative of Vyasa and Vidura. They are not only the illegitimate children of the

sages but they were sagacious too.

With the help of Duryodhana, Karna breaks the glass ceiling and becomes the king. His status

of Kshatriya (Warrior) is an acquired status and probably it is due to this he seems to bealways eager to prove himself as a great warrior and a great donor; both the qualities

expected of a Kshatriya . Was it a reaction to the stigmatization? He boasts of being capable

of killing Arjuna, in spite of his twice being defeated by Arjuna. He gives 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

3. Vidura.

Out of Niyoga of Vyasa with widowed queens of king Vichitrvirya; Amba and Ambalika,

Dhritrashtra and Pandu were born. Dhritrashtra was blind and Pandu was sickly. So Vyasa

was summoned one more time and was sent to Amba, so that the Kuru kingdom may have a

healthy successor. Amba could not stand the sage one more time and sent her maid instead.

Out of the union of the sage and the unknown maid Vidura was born. He was healthy and

intelligent, but being born to the maid, he was not considered as a suitable candidate for the

8 Ibid


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throne of Hastinapur. The maid belonged to Vichtrvirya, and so Vidura became like an

illegitimate child of Vichitrvirya. Though not considered suitable to be a king, he was made

minister in the Kuru court. Though he speaks of Dharma ; hardly anybody listens to him.

Dhritrashtra consults him, when he needs to sooth his troubled mind. But the way

Duryodhana orders him to bring Draupadi in the Sabha Parva indicates that he is not taken

seriously as a family elder. Dhritrashtra also often scolds him. Even once, badly hurt by the

behavior of Dhritrashtra, Vidura leaves the Kuru kingdom and goes to the Pandavas in the

forest. But he was called back. Vidura, though humiliated repeatedly, tries to uphold the

Dharma and puts forward the legitimate demands of the Pandavas. Did he support them out

of his notion of Dharma ? Or did he felt the special bounding with them because the

legitimacy of the Pandavas as sons of Pandu was also questioned?

Vidura and many others, who were apparently illegitimate, do not remain completely

illegitimate. If they are talented and useful, they are utilized and some condescending

recognition is also given to them. Vidura has accepted his inferior position and do not

challenge the establishment. He is not perceived as a threat. He is sometimes listened to, but

many times ignored and insulted. But having accepted his inferior position, his life is free

from the intense struggle, which we find in the life of Karna.

4. Ghatotkacha and Iravat.

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 most probably

hidden from the public gaze and was utilized to serve the purpose of the Pandavas. He is not

called at the time of the Rajsuya Yagya , the important religious ceremony performed by the

Pandavas, but he was called to fight the war on the behalf of the Pandavas. He was used as a

cannon fodder and sent against Karna to save Arjuna. Ghatotkacha dies and his father Bhima

does not say anything. Krishna, who was instrumental in sending Ghatotkacha against Karna,

dances with joy that now his beloved friend Arjuna is safe. 9

The cunning conquering Aryan race was using the forest dwelling simple people for their

benefit. Even they do not have any scruple to use the children in whose vain their own blood

also flows, because the half of the blood belongs to those who are considered as others i.e.

the Non-Aryan Rakashsas.

9 Ibid


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Mahabharata brings out the selfishness and hypocrisy of the human nature. While in distress

we do not hesitate in pretending to love those whom we may not easily acknowledge as our

own!

Even while dying also Ghatotkacha inflates his body as big as possible and falls on the

Kaurava army, so as to kill maximum Kaurava soldier. Through the depiction of the life and

treatment given to Ghatotkacha do the epic gives message that this is how the illegitimate

child should be treated? He can be used to serve the family of his father and he should do it

happily, even while dying he should have welfare of his fathers family at his heart. One can

imagine the conditioning that an impressionable mind will get from this!

After Ghatotkachas death Krishna says that if Karna had not killed Ghatotkacha, Krishna

himself would have killed Ghatotkacha as Ghatotkacha was a sinful soul and inimical to

Brahmanas. The accusation is not supported by evidence in the text. On the contrary

Ghatotkacha had shown devotion to the Brahmins. During the exile of the Pandavas when

Ghatotkacha was remembered by Bhima, he came and shown his reverence to not only to the

Pandavas but the accompanying Brahmins as well. ( Vana Parva , Section CXLIII).

There is no indication of Bhima showing much care for his son born to Rakashashi. Bhima do

not play any role in his upbringing, but abandons Hidimba and Ghatotkacha afterGhatotkachas birth. Marrying a Rakashshi, producing a son on her, using him during the

time of the crises and then at the same time conspiring against him and sending him in the

jaws of death and desiring to kill him if he survives, is obviously a very ignoble act of

Krishna and the Pandavas. Bhima also regarded the life of his half-Aryan, half-Rakashasa son

as inferior than his purely Aryan brother Arjuna. 10

After the death of Ghatotkacha there is no mention of his mother lamenting over his death.

She never enters back in the epic after giving birth to the son. Even after the war is over wesee lamentation of the widows of the slain warrior, we hear neither about the wives or mother

of Ghatotkacha. This indicates that though the Non-Aryan Rakashasa men were used for

fighting from both sides, their women were not allowed to mingle with the Aryan women.

The trend still prevalent in caste ridden Hindu society! A higher cast wealthy male may have

a concubine from the lower caste, but she will not be treated as a respectable wife and neither

allowed to attend the family function.

10 Ibid


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In contrast the death of Abhimanyu was lamented by all. Grief of Subhhadra was described

and Arjuna takes an oath of avenging the death of Abhimanyu. No such treatment for

Ghatotkacha. Discrimination in death as well! Abhimanyu was a son of Subhadra, sister of

Krishna and Ghatotkacha that of a Non-Aryan Rakashasi. Absence of lamentations and

absence of any Rakashasa women crying for their dead husbands and sons indicates the

attitude of indifference towards them by the author of the Mahabharata; Vaysa as well as all

those who interpolated the text later.

Arjuna, the third Pandava prince also had relation with Ulupi, the Naga princess. A son,

Iravat was born out of their union. From the description given in the Bhishma Parva , we get

some glimpses of the childhood of Iravat. The poet writes,

Aban doned by his wicked uncle from hatred of Partha, he grew up in the region of the

Nagas, protected by his mother. ( Bhishma Parva , Section XCI )

So this child of Arjuna and Ulupi faced discrimination in the Naga kingdom and it was Ulupi

alone who shouldered the responsibility of his upbringing. Arjuna also did not feel any

necessity to bring his son begotten on the Naga princess to Indraprastha. Only he was called

to fight in the war to be used as a cannon fodder. 11

So what we can conclude that is the moral values of society go on changing. These changes

are reflected in the narration of the Mahabharata. The illegitimate children are part of every

society, but usually society tries to sweep them under the carpet and stigmatize them.

However there are some who do rise above and make their mark. They negotiate the hurdles

and rise high and society is compelled to recognize them. Different illegitimate children

receive different treatment in the epic. The response of the children also differs.

M ODERN INDI A

The fact that the Indian society has always considered an illegitimate child to be a sham in

the society and having one a taboo, has not changed the fact that the Indian society is

changing and developing in a lot of ways. The mindset of the people have changed a lot and

so now instead of they thinking in theological terms 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

11 Ibid


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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.

A be nch of justices G S Singhvi and A K Ganguly said in a judgement 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.

"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.

"A child born in such a relationship is innocent and is entitled to all the rights which are

given to other children born in 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," the bench said.

The bench disagreed with a plethora of earlier decisions taken by the SC in Jinia Keotin and

several other cases that illegitimate children were entitled only to a share in the self-acquired

property of the parents and nothing beyond that.

"In our view, in the case of joint family property, such children will be entitled only to a

share in their parents' property but they cannot claim it on their own right. The only limitation

even after the amendment seems to be that during the lifetime of their parents, such children

cannot ask for partition (of property) but they can exercise this right only after the death of

their parents.

The bench requested the Chief Justice of India to set up a constitutional bench to examine the

issue. "With changing social norms of legitimacy in every society, including ours, what was

illegitimate in the past may be legitimate today," the bench said. 12

Another article from the same newspaper throws more light in regarding this topic which was

written by Dhananjay Mahapatra:

12 This is taken from an article by an anonymous author from a reputed newspaper of the country The Times ofIndia: TNN Apr 3, 2011, 05.02am IST, The Times of India , Illegitimate kids have stake in property


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HOW LEGITIMATE IS AN ILLEGITIMATE CHILDS 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 proven 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 vs Kumar Sitaram Manjhi [2003 (1) SCC 730] 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 means, a child born out of a legally invalid marriage could claim right to inherit his father's

property alone and not lay inheritance right over ancestral property, which legitimate childrencould.

What happens to children born from live-in relationships, where no marriage has taken place?

The Supreme Court had presumed a man and woman to be married despite them only having a

live-in relationship if they lived for a very long time under one roof and were known in society as

husband and wife. 13

In S PS Balasubramanyam vs Sruttayan [AIR 1992 SC 756], the SC 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 crucial pre-conditions for a child born from live-in relationship to be not treated as

illegitimate are that the parents must have lived under one roof and co-habited for a considerably

13

D. Mahapatra, TNN Aug 27, 2012, 03.20AM IST, How legitimate is an illegitimate childs right to property? , The Times of India


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long time for society to recognize them as husband and wife. It must not be a "walk in and walk

out" relationship, as the court pointed out in its 2010 judgment in Madan Mohan Singh vs Rajni

Kant.

But the court has not yet answered about the right of a child born out of such "walk in and walkout" 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.

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.

However, the law, Section 125 of Criminal Procedure Code, has taken care that no legitimate or

illegitimate child is left unattended by the biological father. It says that a man must maintain his

legitimate or illegitimate child and casts an obligation on the biological father if his offspring is

without any means of sustenance.

It is difficult to lay down a law in this regard without causing some social turbulence. Take for

example a reverse scenario. A child of a happy marriage grows up and inherits his rich father's

property. At that point of time, an outsider turns up and claims that he was the biological fatherand to prove that demands a DNA test.

Should the court order it? If the tests prove positive, proving the indiscretion on the part of the

mother, what happens to her happy marriage? What could be the impact on the father, who is

robbed of his years of parenthood by a scientific test? And what is the duty of the child towards

his biological father with whom he might never have had interacted?

Section 125 of CrPC confers a duty on the child to maintain his biological father or mother and it

does not absolve a married daughter of this responsibility [Dr Vijay Mohan Arbat vs Kashi Rao

Rajaram Sawai 1987 (2) SCC 278]. 14

To escape all these social complications in an already complex human relationship, the Supreme

Court had decided to keep it straight as far as possible after discussing the impact of DNA test

results on married couples and their children.

14 Ibid


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In Kamti Devi case [2001 (5) SCC 311], the SC 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 born to the husband, the

conclusiveness of law would remain unrebuttable."

"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." 15

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.

INDIAN L AWS T O P ROTECT ILLEGITIMATE C HILDREN

Hindu Law provides that irrespective of the fact that a marriage was null and void under

Section 11 of the Hindu Marriage Act, 1955, any child born out of such marriage who would

have been legitimate, if the marriage had been valid, shall be legitimate whether such a child

is born before or after the commencement of the Marriage Laws (Amendment) Act, 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.

The children of voidable marriage are legitimate for all purposes unless a decree of

annulment is obtained by either of the parties to the marriage. The interest of the children

who become illegitimate by virtue of such a decree is safeguarded by an enabling provision

16(2) of Hindu Marriage Act which reads - 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 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. 16

The aforementioned provisions are enabling provisions and so they cannot be construed so as

to confer upon any child of null and void marriage under section 11 any right in or to the

property of any person except the parents. It is notable that these provisions do not wash

15 Ibid16 This has been taken from the web link: http://indiankanoon.org/doc/4639/
http://indiankanoon.org/doc/4639/http://indiankanoon.org/doc/4639/http://indiankanoon.org/doc/4639/http://indiankanoon.org/doc/4639/


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away the stigma of illegitimacy for all purposes as under the Special Marriage Act, 1954 and

the Hindu Marriage Act, 1955 such a child is not entitled to inherit the property of any person

other than the parents. Besides, nothing has been said about the children who are illegitimate

because of being born of void marriage otherwise than under these Acts and also the children

born of concubines. Thus confusion exists relating to the distinction between children

referred to under these provisions and those who have not been referred to.

Under the present legal position legitimate children have been put to serious economic

difficulties. Besides, they also have to suffer social degradation and mental torture. If a father

commits bigamy and procreates illegitimate children then it may be taken as if he has decided

to have his wealth be not for his legitimate children and wife but also for unlawful wife and

her children. It is here that an ill feeling takes birth that affects adversely the whole family.

Does it not appear that instead of ameliorating the lots of illegitimate children the legislature

has created anomalies and hardships for the legitimate children?

The Hindu Succession Act enables the legitimate children to succeed to the property of their

parents-father and mother but regarding illegitimate children it provides that they can only

succeed to the property of their mother only because the word 'related" under section 3(1) (j)

means related by legitimate kinship and a proviso attached in section 3(1) (j) says that

illegitimate children shall be deemed to be related to their mother and to one another and their

descendants shall be deemed to be related to them and to one another. This makes explicit

that the Hindu Succession Act does not recognize illegitimate relationship with the father.

Having a glance at the judicial attitude on this point we find that the Bombay High Court in a

case observed that since a child of void marriage is illegitimate he is not entitled to succeed to

the estate of his father under Hindu Succession Act while in Laxmi bai case the same court

held that the child of void marriage is entitled to succeed to the property of his father. It is to

be noted that in aforementioned Dadoo Atmaram case section 16 of Hindu Marriage Act was

not brought to the attention of the Court and in this case the Court did not consider

significance of the expression 'related' in the proviso to section .3(1)(j) of the Hindu

Succession Act, 1955. 17

Resolving the controversy between the rulings given in these two cases the Division Bench in

Shantaram case held that the children of void and annulled voidable marriages are entitled to

the property of their father as legitimate children. The Bench observed that legitimacy created

17 Ibid


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Page 14 of 17

by section 16 of Hindu Marriage Act must be read into as part of the definition in section (1)

(j) of Hindu Succession Act, 1956.

Regarding the right of son born out of void marriage, to share the joint family property under

Mitakshara law, various Courts in many cases including that of J Sujata v. J Krishna Prasad

observed that though the children 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. Whereas, in

many other cases including Goverdhan Singh v. Hiraman Singh12 and Margbandhu v. K

Mandhiri they held, since the son of void marriage is made legitimate, he is entitled to share

in the coparcenary property. Finally in the case of Rasal Prakash Rao 14(a) Division Bench of

AP High Court ruled that the illegitimate sons of Dwijas are entitled to maintenance only.

The illegitimate sons of a Sudra by a permanently kept concubine has status of a son and is a

member of the family but his rights are limited as compared to those of a son born into

wedlock. He has no right by birth and therefore, he cannot demand partition during his

father's lifetime. If a partition is made during father's lifetime he will be allotted a share by

father's choice. And in otherwise case, the brother should make him a partaker of the moiety

of a share.

Thus under Mitakshara Law an illegitimate son succeeds to the father's estate as a coparcener

with the legitimate son with the result that on the death of the father before partition he

becomes entitled to the whole estate by survivorship. In case of no legitimate son, the

illegitimate son would be entitled to half of his father's estate where there is a widow,

daughter or daughter's son of the last male holder and where any one of the three heirs is

absent the entire estate of his would devolve on him. 18

In essence this decision says that the legitimatised son does not acquire any right by birth in

the joint family property even by virtue of section 16 of Hindu Marriage Act. He becomes

coparcener with the other legitimate sons after father's death. On partition he shares equally

along with other coparceners. The intention of the Legislature is to confer on the

legitimatised child a right in or to the property of the father. If the father is in possession of

ancestral property the legitimatised son acquires an interest in it by birth and if the father is in

18 Ibid


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possession of separate property he succeeds as a class I heir after the death of the father. Just

to make the point more clear the legitimatised son becomes a coparcener with his father and

he is entitled to share in the joint family property during the lifetime of the father and even if

other coparceners are present. Under the English Law contained in the Family Law Reforms

Act, 1987 the illegitimate children enjoy full rights of succession.

The illegitimate children must be given right equal to other children because it is the law

itself which has categorized them as illegitimate and legitimate. The children have done no

wrong. They should not be punished by curtailing their right for no fault on their part.

As regards Muslim Law, it does not recognise any process by which status of legitimacy may

be conferred on an illegitimate child. However, the traditional Muslim law provides for the

acknowledgement of legitimacy but the idea behind it is not always to legitimate the child but

it is from a different perspective. A Muslim marriage needs no religious formalities for its

constitution. It may be performed only by observing some secular formalities so the cases

regarding doubts in the validity of Muslim marriage are comparatively higher. With the 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, that 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. In our country an illegitimate child cannot inherit to his father,

even if the genetic father is known. As a matter of fact a father cannot cease to be a father

only because of being not lawfully married to the mother of the child. It is rather unjust and

unreasonable to deprive a child of the right to inherit the property of his generator or

procreator in case a person is known. Barring provision of Evidence Act as contained in

section 112 providing that a child born to married woman having access to her husband shall

be conclusively presumed to be the child of the husband, in other cases it does not appear

reasonable as to why an illegitimate child shall not inherit the property of its genetic father. 19

19 Ibid


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Page 16 of 17

C ONCLUSION

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 ofthe 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.


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R EFERENCES

Books:

Dr. U. P. D. Kesari, Modern Hindu Law , Central Law Publications

S.A. Desai, Mulla Hindu Law , Vol. 1, LexisNexis Butterworths Wadhwa, Nagpur

Websites:

http://indiankanoon.org/doc/4639/ (Visited on 29 th October 2013) http://en.wikipedia.org/wiki/Legitimacy_(law) (Visited on 29 th October 2013) http://s3.amazonaws.com/academia.edu.documents/31258460/Illegitimate_children_i

n_the_Hindu_Society.docx?AWSAccessKeyId=AKIAI5BFST3KI667TFIQ&Expires=1383292693&Signature=EKPmbEBhZMWhYrhYD06W8JoNdmI%3D (Visited on

28 th October 2013)

Newspaper Ar ticles:

Anonymous, TNN Apr 3, 2011, 05.02am IST, The Times of India , Illegitimate kidshave stake in property

D. Mahapatra, TNN Aug 27, 2012, 03.20AM IST, How legitimate is an illegitimate childsright to property? , The Times of India
http://indiankanoon.org/doc/4639/http://en.wikipedia.org/wiki/Legitimacy_(law)http://s3.amazonaws.com/academia.edu.documents/31258460/Illegitimate_children_in_the_Hindu_Society.docx?AWSAccessKeyId=AKIAI5BFST3KI667TFIQ&Expires=1383292693&Signature=EKPmbEBhZMWhYrhYD06W8JoNdmI%3Dhttp://s3.amazonaws.com/academia.edu.documents/31258460/Illegitimate_children_in_the_Hindu_Society.docx?AWSAccessKeyId=AKIAI5BFST3KI667TFIQ&Expires=1383292693&Signature=EKPmbEBhZMWhYrhYD06W8JoNdmI%3Dhttp://s3.amazonaws.com/academia.edu.documents/31258460/Illegitimate_children_in_the_Hindu_Society.docx?AWSAccessKeyId=AKIAI5BFST3KI667TFIQ&Expires=1383292693&Signature=EKPmbEBhZMWhYrhYD06W8JoNdmI%3Dhttp://s3.amazonaws.com/academia.edu.documents/31258460/Illegitimate_children_in_the_Hindu_Society.docx?AWSAccessKeyId=AKIAI5BFST3KI667TFIQ&Expires=1383292693&Signature=EKPmbEBhZMWhYrhYD06W8JoNdmI%3Dhttp://s3.amazonaws.com/academia.edu.documents/31258460/Illegitimate_children_in_the_Hindu_Society.docx?AWSAccessKeyId=AKIAI5BFST3KI667TFIQ&Expires=1383292693&Signature=EKPmbEBhZMWhYrhYD06W8JoNdmI%3Dhttp://s3.amazonaws.com/academia.edu.documents/31258460/Illegitimate_children_in_the_Hindu_Society.docx?AWSAccessKeyId=AKIAI5BFST3KI667TFIQ&Expires=1383292693&Signature=EKPmbEBhZMWhYrhYD06W8JoNdmI%3Dhttp://s3.amazonaws.com/academia.edu.documents/31258460/Illegitimate_children_in_the_Hindu_Society.docx?AWSAccessKeyId=AKIAI5BFST3KI667TFIQ&Expires=1383292693&Signature=EKPmbEBhZMWhYrhYD06W8JoNdmI%3Dhttp://s3.amazonaws.com/academia.edu.documents/31258460/Illegitimate_children_in_the_Hindu_Society.docx?AWSAccessKeyId=AKIAI5BFST3KI667TFIQ&Expires=1383292693&Signature=EKPmbEBhZMWhYrhYD06W8JoNdmI%3Dhttp://en.wikipedia.org/wiki/Legitimacy_(law)http://indiankanoon.org/doc/4639/

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