RIGHTS OF ILLEGITIMATE CHILDREN IN INDIA
Author: Janaki Nair
A child is said to be ‘illegitimate’ if s/he/they were born to parents who were not married to each other at the time of the birth. The child would still be considered illegitimate even if the child’s parents got married after the birth. Though every child needs care and protection due to mental and physical vulnerabilities, there is a subcategory of children who might need more warmth, safety, and care than others.
Children born from a relationship that is both societal and legally (if proved), condemned to belong to this aforementioned category. One of how these children are protected is through the presumption of legitimacy of a child born during wedlock. This presumption is recognized, in English law and Indian Law. This concept is statutorily recognized in the latter. As India is a secular country hosting many different religions, every religion-specific statute has its take on this presumption of legitimacy. Even under these personal codes and regulations, the laws relating to maintenance, property rights, guardianship, etc. also vastly different. Moreover, other than our national laws, International conventions have also played their part in trying to eradicate the social stigma surrounding an illegitimate child, like Article 25 of the United Declaration of Human Rights, the five principles of the Geneva Declaration, the International Covenant on Civil and Political Rights of 1989, etc. This paper strives to offer a detailed explanation of the various laws and their stance concerning the legitimacy of a child.
PRESUMPTION OF LEGITIMACY
In general Indian Law under Section 112 of the Indian Evidence Act 1872, the presumption of legitimacy is extremely apparent. The section states that any child born to a woman who is in a marriage with another person, or if born within 280 days from the dissolution of marriage, with the mother remaining unmarried for those 280 days, would be deemed to be legitimate. In fact, in the case of Nandlal Badwaik, it is stated that if a situation ever arises where there is a need to take a DNA test, the presumption of legitimacy supersedes it.
The Hindu Marriage Act of 1955 talks about matrimonial relationships and sub-issues on Hindu, Jain, Sikh, and Buddhist by religion. Earlier, the same Act did not consider children born out of the void or voidable marriages as legitimate. But this anomaly was amended, due to the huge social ostracization, it gave these children. According to the 1976 amendment children born out of void/voidable marriage would be considered legitimate, although any kind of annulment or nullity has not yet been obtained by the parents.
However, care must be taken to notice that this amendment in the statute only gives recognition to children who are born during a married relationship, and not to individuals who have no sort of married relationship between them.
With regards to maintenance, according to the HMA Act of 1955 and the Hindu Adoptions and Maintenance Act of 1956, a Hindu parent is duty bound to provide maintenance to their illegitimate child:
- Until the illegitimate child attains majority,
- Until the illegitimate child ceases to be a Hindu.
With regards to succession, the Hindu law relies on the Hindu Succession Act of 1956. The basic idea is that a child born outside of a marriage relationship is not initially assumed to be legitimate. Section 3(1) (j) of the 1956 Act states that if the illegitimate children are assumed to be related to their mother, and legitimate descendants are deemed to relate to one another. In this manner, they are recognized as successors and can inherit from each other under the 1956 Act. However, this section states that neither is the father able to inherit from the illegitimate child nor is the child able to inherit from the father.
In the case of Margabandhu, where it was argued that an illegitimate child of a void marriage can only have the father’s share in the joint property and that they cannot even try to claim equal shares like the legitimate children were rendered invalid.
With regards to guardianship, the Hindu Minority and Guardianship Act of 1956 comes into play. According to this Act, the mother is given the first preference as the lawful guardian of the child, after comes the father. It is in reverse to the lawful guardians of a legitimate child. The lawful guardian of an illegitimate married girl is her husband. In 2015, the Supreme Court has also decided that an unwed single mother can be the sole guardian of an illegitimate child.
With regards to domicile, under Sections 7 and 8 of the Indian Succession Act of 1925, an illegitimate child’s domicile of origin would pertain to the country in which the mother was domiciled during the former’s birth. The same is reiterated in the case of Kedar v. Narain Bikram.
Unlike Hindu law, Muslim law is completely based on the assumption that any sort of parentage is only established between people who are in a lawful marriage relationship with each other. In none of the schools of Muslim law, the illegitimate child has a right to property from its father.
With regards to inheritance, under the Hanafi law, the child has the right to acquire property from the mother and all other property from the mother’s relations. Under Shia law, even inheriting from the mother is prohibited, and illegitimacy acts as a complete exclusion. Maintenance of an illegitimate child is also not necessary under Muslim law, even though the Hanafi law at least recognizes the duty to nurture and care for a kid till 7 years of age. Muslim law does not confer any obligation on either of the parents to become the natural guardians of an illegitimate child.
With regards to maintenance, the Code of Criminal Procedure of 1973 states that every child who is unable to maintain itself is entitled to be taken care of. This provision does not discriminate based on the marital status of the child’s parents. The only two conditions that should be satisfied are:
- child should be a minor and unable to take care of himself.
- if a child is a major, then the child is unable to maintain itself by way of physical or mental disabilities.
Therefore, to ensure that these children are not left stranded with anyone to take care of, the maintenance of illegitimate children is governed by the provisions of CrPC for all other religions except for Hindus. Personal laws of these religions are only used for ascertaining the rights of legitimate children.
To conclude, even though there are laws that try to ensure that these children are also taken care of, it still cannot be said that these children are treated equally. It becomes a more difficult job to work through due to the social discrimination and stigma attached to these children who are undeserving of it. It is a big issue in India and needs to be addressed more wholly across social and legal contexts.
 Prachi Dutta, ‘Illegitimate’ Children and the Law: A Primer on the Rights of Children Born Out of Wedlock in India,LEGIT EYE (December 24th , 2020, 04:15 PM), https://legiteye.com/illegitimate-children-and-the-law-a-primer-on-the-rights-of-children-born-out-of-wedlock-in-india-by-prachi-dutta/  NandlalWasudevBadwaik v Lata NandlalBadwaik, AIR 2014 SC 932  S.16, The Hindu Marriage Act, 1955.  Margabandhu v. Kothandarama, AIR 1984 Mad. 270.  S.6 (b), The Hindu Minority and Guardianship Act, 1956.  ABC v. State of NCT (Delhi), (2015) 10 SCC 1.  Kedar Pandey v. Narain Bikram, AIR 1966 SC 160.  S.125, Code of Criminal Procedure, 1973.  Kusum. “Rights and Status of Illegitimate Children.” JOURNAL OF THE INDIAN LAW INSTITUTE, vol. 40, no. 1/4, 1998, pp. 295–310. JSTOR, www.jstor.org/stable/43953323. Accessed 25 Dec. 2020.