INCOME TAX NOTES

Chapter 5 Legitimacy - Legal Status of Children Born of Void and Voidable Marriage.


Introduction

 “There are no illegitimate children – only illegitimate parents.”
  – Leon R. Yankwich
 Under all societies in the world, the status of a child i.e. whether it is born legitimate or illegitimate has great consequence. Both in the contemporary society and in the historical society there is classification of children as legitimate and illegitimate.
 Since time immemorial, there is a social stigma surrounding a child who is not born to legally wedded/married parents. The illegitimate children never enjoyed equal status along with the legitimate children. The society always discriminated the illegitimate children in many ways. Not only the society discriminated them, even law has discriminated them. Law has not given the illegitimate children the same legal rights as the legitimate ones are given. Under almost all the personal laws the right to inheritance of the legitimate children and the illegitimate children are not the similar. Illegitimacy carried a strong social stigma among all religions practised in the world.[i]
 Illegitimacy as defined by the Oxford Dictionary means, “(Of a child) born of parents not lawfully married to each other”. This means illegitimacy means when the parents of a child are not lawfully wedded, the child will be considered illegitimate.
Premarital sexual relationship and extramarital sexual relationship are considered to be a sin in almost all the societies. So the resultant child of such offensive relationship is also kept in a state of sin. It is considered illegitimate.
Many religions also view premarital or extramarital sexual relationship as an offensive relationship. Almost all the personal laws in India are religion-based and so even under law, the children born out of such offensive relationship are not given equal status with the children born out of a lawful wedlock.[ii]

Illegitimacy as a concept

In medieval Wales, a “bastard” was defined simply as a child not acknowledged by its father. All children, whether born in or out of wedlock, which were acknowledged by the father, enjoyed the same legal rights, including the right to share in the father’s estate. After England’s conquest of Wales, English law came to apply in Wales.
Under English law, a bastard was unable to be an heir to real property, in contrast to the situation under civil law, and could not be legitimized by the subsequent marriage of father to his mother. There was one exception: when his father subsequently married his mother, and an older illegitimate son (a “bastard eignè”) took possession of his father’s lands after his death, he would pass the land on to his own heirs on his death, as if his possession of the land had been retroactively converted into true ownership. A younger non-bastard brother (a “mulier puisnè”) would have no claim to the land.
The Legitimacy Act 1926 of England and Wales legitimized the birth of a child if the parents subsequently married each other, provided that they had not been married to someone else in the meantime. The Legitimacy Act 1959 extended the legitimization even if the parents had married others in the meantime and to putative marriages which the parents incorrectly believed were valid. Neither the 1926 nor 1959 Acts changed the laws of Succession to the British throne. The Family Law Reform Act 1969 (c. 46) allowed a bastard to inherit on the intestacy of his parents. In canon and in civil law, the offspring of putative marriages have also been considered legitimate.[iii]
 The courts in India decide1 a child to be legitimate or illegitimate depending on the following criteria:
  1. A child born within lawful wedlock is a legitimate child
  2. At the time of the birth of the child, if the father and mother of the child are legally married to each other, the child is a legitimate child. A child born outside the lawful wedlock is an illegitimate child.
 At the time of the birth of the child, if the father and mother of the child are not legally married to each other, the child is an illegitimate child.

Illegitimacy under Hindu Law

 Under the Hindu Law, if a marriage fulfils all the conditions laid down in Section 7 and Section 5 of the Hindu Marriage Act, 195518 it is considered to be a valid marriage. Children born of such a valid marriage are alone considered legitimate. If the conditions lay down under Section 5 of the Act, are not satisfied, the resultant marriage may be void or voidable marriage as per Sections 11 and 12 of the Act.
 Void marriage Section 11 of the Hindu Marriage Act, 195519 defines a void marriage. It says, if the marriage is in contravention of any of the conditions specified in clauses (i), (iv) and (v) of Section 520 it shall be null and void. The children born of such a marriage are considered to be illegitimate children. [iv]
 Voidable marriage Section 12 of the Hindu Marriage Act, 195521 lays down the grounds of voidable marriages. If the marriage is annulled under anyone of the grounds under Section 12, then the children born of such a marriage are considered to be illegitimate children.
 Apart from the above, if proper ceremonies are not performed at the time of marriage as per Section 7 of the Hindu Marriage Act, the resultant marriage is not a valid marriage. Children born of such marriage will also fall under the category of illegitimate children. Hence, children who will fall under the category of the illegitimate children under Hindu Law may be summed up as follows:
  1. Children born of void marriage;
  2. Children born of annulled/voidable marriage;
  3. Children born of illicit relationship;
  4. Children born through concubinage; and
  5. Children born of a marriage which is not valid for want of proper ceremonies.
 In essence, under Hindu law the rule of legitimacy is dependent upon the marriage. The social status of children is determined by the act of their parents. If they have entered into a valid marriage, the children are legitimate; but if the parents committed a folly and entered recklessly into an invalid marriage or a child is conceived even without entering into a relationship of marriage the resultant innocent child are labelled as illegitimate. The innocent child without having any hold or control over the act of its parents has to suffer the consequence of it.[v]

Rights of an Illegitimate Child in the Past

The Hindu law relating to illegitimate children can be discussed under the following four heads:
  1. Maintenance
  2. Inheritance
  3. Joint Family Property and Partition
  4. Guardianship 
Maintenance:
Prior to the coming into force of the Hindu Adoptions and Maintenance Act, 1956, an illegitimate son of a Hindu was entitled to maintenance out of his father’s coparcenary property and his self­ acquired property. The father was bound to maintain his illegitimate son during the period of his minority, irrespective of the fact whether he had any property or not.
Among the Shudras, illegitimate sons were entitled to maintenance if they could not inherit or get a share on partition. If, however, the mother was not a Hindu, this right could not be enforced under the Hindu law. The illegitimate son could, in that case, proceed against the putative father under the Code of Criminal Procedure.
Illegitimate daughters had formerly no remedy under Hindu law. They were, however, entitled to maintenance under the Code of Criminal Procedure, which right was enforceable only during the life­time of the putative father and terminated on his death.
Inheritance:
An illegitimate child is not entitled to succeed to his father. But under the Hindu Succession Act, illegitimate children are deemed to be related by illegitimate kinship to their mother and to one another, and their legitimate descendants are deemed to be related by legitimate kinship to them and one another, and can therefore inherit from each other under the said Act. An illegitimate child can inherit the property of his or her mother or of his or her illegitimate brother or sister. A mother also can inherit the property of her illegitimate child. The father has no right to inherit the property of his illegitimate child.
Joint Family Property and Partition:
Unlike a legitimate son, an illegitimate son does not acquire any interest in the ancestral property in the hands of his father; nor does he form a coparcenary with him, so that during the life-time of his father, the right of the illegitimate son is only limited to maintenance. But the father may, in his lifetime, give him a share of his property, which may be a share equal to that of the legitimate sons.
Guardianship:
A mother had a preferential right of guardianship. The mother is considered the natural guardian of an illegitimate child. The father had no right to the custody of the illegitimate son during the letter’s minority, and ordinarily, the mother of an illegitimate child had the right to the custody of the child during the years of nurture.

Rights of an Illegitimate Child in the present scenario

The Hindu law relating to illegitimate children and the changes that are done in the following years are also discussed under the four heads:
  1. Maintenance
  2. Inheritance
  3. Joint Family Property and Partition
  4. Guardianship
Maintenance:
 Under the Hindu Adoptions and Maintenance Act, 1956, a Hindu is bound, during his or her life-time, to maintain his or her illegitimate children. The obligation to maintain illegitimate children is now 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 father and mother.
The right to be maintained, however, extends only upto the period of minority. An illegitimate child is not entitled to be maintained by his or her parents after attaining majority. Such a child will also not be entitled to be maintained if he or she has ceased to be a Hindu by conversion to another religion.
Moreover, under the Hindu Adoptions and Maintenance Act, an illegitimate son of a deceased Hindu, so long as he is a minor, and an illegitimate daughter of a deceased Hindu, so long as she remains unmarried, are entitled to be maintained by the heirs of the deceased out of the estate inherited by them or by the persons who take the estate of the deceased.
Such a son or daughter, however, will not be entitled to maintenance under the said Act if he or she has ceased to be a Hindu by conversion to another religion.
An illegitimate child who has ceased to be a Hindu can, however, apply for maintenance from his or her father under the Code of Criminal Procedure.
Inheritance:
After the passing of the Hindu Succession Act, 1956, an illegitimate child of a Shudra cannot inherit the property of his or her father. Formerly, an illegitimate son of a Shudra if he was a dasiputra, was entitled to succeed to his father. Now, under the Act, he cannot.
Joint Family Property and Partition:
Prior to the passing of the Hindu Succession Act, on the death of his father, an illegitimate son succeeded to his estate as a coparcener with the legitimate son of his father, and was entitled to enforce a partition against the legitimate son. Now, under the said Act, however, he cannot succeed his father, as he is not related to him by legitimate kinship.
Guardianship:
The mother is considered the natural guardian. Now, if both the parents of an illegitimate child are Hindus, Buddhists, Jains or Sikhs by religion, or if one of the parents of such child is a Hindu, Buddhist, Jain or Sikh by religion, and such child is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged, then the Hindu Minority and Guardianship Act, 1956, applies to such a child, and under section 6 of the Act, in the case of an illegitimate boy or illegitimate unmarried girl, the mother is the natural guardian, and after her, the father is the natural guardian, and in the case of a married girl, the husband is the natural guardian.
But under that Act, such a guardian is not entitled to act as such, if he or she had ceased to be Hindu or has completely and finally renounced the world by becoming a hermit or an ascetic.[vi]

Judiciary on Illegitimacy

The court has given some landmark judgements in the field of illegitimacy.
Some of such decisions are:
The Supreme Court of India in Revanasiddappa v. Mallikarjun [vii]opined that: the constitutional values enshrined in the Preamble of our Constitution which focuses on the concept of equality of status and opportunity and also on individual dignity. 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.[viii]
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.
In Jinia Keotin v. Kumar Sitaram Manjhi[ix], , the Supreme Court has said:
 Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If the marriage itself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardising the children born of the parties to such marriage.
In Kamulammal (deceased) represented by Kattari Nagaya Kamarajendra Ramasami Pandiya Naicker v. T.B.K. Visvanathaswami Naicker (deceased) & Ors[x]., the Privy Council held when a Sudra had died leaving behind an illegitimate son, a daughter, his wife and certain collateral agnates, both the illegitimate son and his wife would be entitled to an equal share in his property. The illegitimate son would be entitled to one-half of what he would be entitled had he been a legitimate issue. An illegitimate child of a Sudra born from a slave or a permanently kept concubine is entitled to share in his father’s property, along with the legitimate children.
In Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh & Anr[xi]., the facts were that the Raja was a Sudra and died leaving behind a legitimate son, an illegitimate son and a legitimate daughter and three widows. The legitimate son had died and the issue was whether the illegitimate son could succeed to the property of the Raja. The Privy Council held that the illegitimate son was entitled to succeed to the Raja by virtue of survivorship.
In Thrumurthi Ranayammal v. Thrumurthi Muthamal, the Madras High Court observed, “the wordings of Section 16 of the Hindu Marriage Act, in so far as it is relevant to a marriage void under Section 11, leads to an anomalous and startling position which could not have been contemplated by the legislature. The position and status of a child of void marriage should obviously be the same whether the marriage is declared a nullity under Section 11 or otherwise.
In Shanta Ram v. Smt. Dargubai, the Bombay High Court observed that the children of void marriages would be deemed legitimate, irrespective of the decree of nullity although they would not acquire the right to succession to the same extent as is available to the children of valid marriage.

 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.
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.
There is a need to be more liberal towards the illegitimate children and the laws should also be amended in such a way that they have the best interest of all the people at heart.