Property rights of illegitimate children

There are no illegitimate offspring, only illegitimate parents, once claimed Leon R Yankwich. The property rights of illegitimate children in India are based on a fundamental principle stated in the Indian Constitution.

Article 39 (f) of the constitution prescribes that children should be given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity. Childhood and youth are protected against exploitation and against moral and material abandonment. Right to property is a constitutional right and Article 300A states that ‘no person shall be deprived of his property, save by the authority of law’.

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Who are defined as illegitimate children?

An illegitimate child is one, whose parents are not married, as per the law. A child conceived after the marriage is considered as legitimate. Under the Hindu law, a child will be termed as illegitimate in the following conditions:

1. Children born of void marriages.
2. Children born of annulled/voidable marriages.
3. Children born of illicit relationships.
4. Children born through concubines.
5. Children born of a marriage, not valid for want of proper ceremonies.

Property rights of illegal children under Hindu Marriage Act

Section 16 (3) of the Hindu Marriage Act, 1955, governs the inheritance rights of illegitimate children. As per Section 16 (3), illegitimate children are ‘only entitled to the property of their parents and not of any other relation’. Apart from Hindus, the law is also applicable to Sikhs, Jains and Buddhists.

This was interpreted as illegitimate children having the right in their parents’ self-acquired property and not in ancestral property.

In the Bharatha Matha & Another Versus R Vijaya Renganathan & Others case (2010) and the Jinia Keotin Versus Kumar Sitaram (2003) case, the apex court had also taken the stand that children born out of void marriages were not entitled to claim ancestral property of their father and could only stake a claim in his self-acquired property. But,

The Supreme Court , however, held that illegitimate children have the right in their parent’s self-acquired, as well as ancestral properties under the Hindu Marriage Act while giving its verdict in Revansiddappa & Others Versus Mallikarjuna & Others in 2011.

“The 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 parents. A child born in such a relationship is innocent and entitled to all the rights, which are given to other children born in valid marriages. This is the crux of Section 16 (3),” a bench of justice GS Singhvi and justice AK Ganguly ruled.

“If they were declared legitimate, then, they cannot be discriminated against and they will be on a par with other legitimate children and be entitled to all the rights in the property of their parents, both, self-acquired and ancestral… We find it interesting to note that the legislature has advisedly used the word ‘property’ and has not qualified it with either self-acquired property or ancestral property. It has been kept broad and general,” it further added.

The SC, however, ruled that illegitimate children would only be entitled to a share in their parents’ property, but in case of joint family property, they cannot claim it on their own.

However, differing with the view taken by coordinate benches in three case, the matter was referred to a three- judge Bench. In November 2022, the SC while hearing a civil appeal said that the reference on the issue of illegitimate children’s right in their father’s ancestral property is in the case is still pending consideration for a larger Bench. It also directed the registry to place the matter before the Chief Justice of India.

Note, the rights of illegitimate children under the Hindu Law were dismal prior to the Marriage Laws (Amendment) Act, 1976, which amended Section 16 of the Hindu Marriage Act, 1955.

Source: housing