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As the rich heritage and traditional
values of the Muslim and Christian society have succeeded in preserving
the restraints on sexual relations (in spite of the onslaught of the
modern society the sexual mores have more or less been preserved), the
problem of illegitimacy is presently not alarming in India (although it
has been growing at an alarming rate) and thus there is no such urgency
to enact special laws for the conferment of legitimacy on the children
proved to be illegitimate. But there is also a pressing need to include
special provisions in the existing laws of succession and maintenance
for 'illegitimate' children at least in the Muslim and Christian laws at
least, as that is what the paper is concerned with.
Muslim Law
Parentage is only established in the
real father and mother of a child, and only if they beget the child in
lawful matrimony. Muslim Law is devoted to the notion that an
illegitimate child is a filius nullius, it
owes no nasab to either parent. In Hanafi
Law maternity is established in the case of every child but in Shiite
Law, maternity is established only if the child is begotten in lawful
wedlock. They (Sunnis or the Hanafis) adopt
a view that an illegitimate child, for certain purposes, such as for
feeding and nourishment, is related to the mother. For these purposes
the Hanafi Law confers some rights on its mother.
Macnaughten said, "a bastard child belongs, legally speaking, to
neither of the parents and it is in every sense of the word filius
nullius ; it should, until it has attained the age of seven years, be
left in the charge of the mother. After that age, it may make its own
election with which of the parties it will reside, to it may live apart
from them altogether."
In Muslim Law, a son to be
legitimate must be the offspring of a man and his wife or that of a man
and his slave; any other offspring is the offspring of 'Zina',
that is illicit connection, and hence is not legitimate. The term 'wife'
essentially implies marriage but marriage may be entered into without
any ceremony, the existence of marriage therefore in any particular case
may be an open question. Direct proof may be available, but if there be
no such proof, indirect proof may suffice. Now one of the ways of
indirect proof is by an acknowledgement of legitimacy in favour of a
son. This acknowledgement must be not merely of sonship, but must be
made in such a way that it shows that the acknowledger meant to accept
the other not only as his son, but also as his legitimate son.
Thus under Muslim Law
acknowledgement as a son prima facie means acknowledgement as a
legitimate son. Therefore, under the Muslim Law there is no rule or
process, which confers a status of legitimacy upon children proved to be
illegitimate. The Privy Council in Sadiq Hussain
v. Hashim Ali pithily laid down this rule:
"No statement made by one man that
another (proved to be illegitimate) as his son can make other
legitimate, but where no proof of that kind has been given, such a
statement or acknowledgement is substantive evidence that the person so
acknowledged is the legitimate son of the person who makes the
statement, provided his legitimacy is possible."
"The above discussion shows that the
rules of legitimacy under the Muslim Law are logically sound whereas the
rules enacted under the Hindu Marriage Act, 1955
and Special Marriage Act, 1954 are
illogical as they confer legitimacy upon the children proved to be
illegitimate."
Right to
property of illegitimate child
In Muslim law, the illegitimate child has no right to inherit property
through the father and in the classical law, as well as in some modern
Islamic jurisdictions, the mother of an illegitimate child may well find
herself subject to harsh punishments imposed or inflicted on those found
guilty of zina. Thus, the difficult status
of legitimacy in Islamic law has very important consequences for
children and their parents, especially mothers. Thus the difficulty of
an illegitimate child in claiming property from parent/s.
Under no school of Muslim law an
illegitimate child has any right of inheritance in the property of his
putative father. Under the Hanafi law, it seems, the mother and her
illegitimate children have mutual rights of inheritance. The
illegitimate child inherits not only the property of its mother but also
the property of all other relations with whom it is related through the
mother
Thus, when a Hanafi female dies
leaving behind her husband and an illegitimate son of her sister, the
husband will take one-half as a sharer and the residue will go to
sister's son. Since the illegitimate child cannot inherit from the
father, it cannot inherit from any other relation through the father.
In Pavitri v.
Katheesumma Vaidiaalingam J. held, "Mohammadan law appears
to impose no burden upon the natural father of an illegitimate
child..."It would, therefore, be seen that an illegitimate child is not
entitled to inherit the property from either parent under Shia law; and
is entitled to inherit only from its mother under Hanafi law
A reciprocal right of inheritance
exists between him and his maternal relations. They are also his
residuary heirs. Of course his other inheritors are his/her spouses, and
his descendants, except his father and the latter's relations. Thus if
an illegitimate person leaves a mother, a daughter and father, the
daughter would get ½ and the mother 1/6th; the remainder would revert to
them by return. The father would be excluded. Similarly an illegitimate
brother and illegitimate uncle are not entitled to inherit. But a twin
brother will inherit as his uterine brother (the twin brother is
regarded as the son of only the mother and not that of the father, hence
the term- uterine brother).
The Allahabad High Court has also
laid down, "when there is the question of an illegitimate child
inheriting the property of his or her mother or through his or her
mother, and we have to find the mother's relations, whose property he or
she can inherit, obviously, those relations, must be his or her mother's
maternal relations. The illegitimate child has in law no father, and he
or she can have nothing to do with his or her mother's relations by
subsequent marriage, as a result of which new relationships arise. For
purposes of inheritance there must be some relationship between the
person, on whose death the succession has opened and the person who
claims title to succeed. No relationship can possibly arise between an
illegitimate child and a child born of his or her mother in lawful
wedlock. We, therefore, hold that a son born of a woman after her
marriage cannot be considered as 'her relation', whose property her
illegitimate child is entitled to inherit."
Under the Shia law the illegitimate
child does not inherit even through the mother. However the child of an
imprecated mother does inherit from the mother and vice versa. In Shia
law, illegitimacy acts as factor for total exclusion, and a bastard is
not allowed to inherit either from mother or father.
A distinction however is made
between a child of fornication and a child whose parentage has been
disallowed by the father, that is, a child of imprecation. In case of
fornication, the child is excluded from inheritance; while a child of
imprecation, is allowed to inherit from the side of his mother. Hanafi
law does not recognize this distinction. The child of fornication and
imprecation are both regarded as illegitimate, and inherit from the
mother's side.
Right to
maintenance of illegitimate child
Muslim laws, it seems, confers no obligation of maintenance of
illegitimate children on either parents, though the Hanafis recognize
the obligation of nurture till the child attains the age of seven; the
Shias do not recognize even this obligation.
Though the father under Muslim Law
is not bound to maintain his illegitimate child, the researcher thinks
Section 125 of the Criminal Procedure Code, 1973, (which should ensure
that all such unfortunate children are maintained by their fathers)
however binds such a father to pay for the maintenance of the child. The
father would be liable to pay this amount even if the mother refuses to
surrender the illegitimate child to him.
In the case,
Sukha v. Ninni, it was held that, "An agreement to maintain
an illegitimate child, for which the Mohammedan Law as such makes no
provision, will in my opinion not have the effect of defeating the
provisions of any law. As a matter of fact, maintenance of illegitimate
children has been statutorily recognized under Section 125 of the
Criminal Procedure Code of 1973 in our country and it is in consonance
with this wholesome policy that the offsprings born under such
circumstances are to be provided for and should not be left to the
misfortunes of vagrancy and its attendant social consequences."
Whereas, in
Pavitri v. Katheesumma where an illegitimate daughter born to a
Muslim father and a Hindu mother brought a claim for maintenance from
the assets of the dead father it was held that though "an illegitimate
does not inherit properties of its putative father or his relations and
from this it would follow that an illegitimate child cannot claim
maintenance from the assets left by its putative father and which are in
the hands of the heirs of the putative father ....even though S.125 of
the Cr P C imposes a statutory obligation on a Muslim father to maintain
his child even an illegitimate."
The Court further held, "whether the
principles of Hindu Law apply or whether the principles of Muslim Law
apply, the plaintiff in this case who was an illegitimate daughter born
of a Mohammedan male and a Hindu female was not entitled to claim
maintenance from the putative father or from the assets left by him
apart from any rights that may have been conferred on her by Statute (Cr
P C). Since the plaintiff had not based her claim upon any statutory
right her suit for recovery of maintenance from the assets of her
putative father was bound to fail."
Christian Law
The rules concerning the right to
property of Christian children are contained in the
Indian Succession Act, 1925. Therefore the
following discussion on the right to property of Christian illegitimate
children shall be based on the relevant provisions of the
above-mentioned Act.
Right to
property of illegitimate child
There is nothing in the Act that speaks of an illegitimate child's right
to property but in various Sections of the Act an illegitimate child's
claim to be even a child (within the strict meaning of the term "child")
is negated.
An in-depth study of Part IV of the
Act, which deals with 'consanguinity' reveals that the Act contemplates
only those relations which the law recognizes, i.e., relations flowing
from lawful wedlock.
Section 37
which says, "where the intestate has left surviving him a child or
children, but no more remote lineal descendant through a deceased child,
the property shall belong to his surviving child, if there is only one,
or shall be equally divided among all his surviving children", also
points out to the proposition that the word child does not include an
illegitimate child.
Batchelor J.
opined in Smith v. Massey that, "
since the Act speaks of certain relations, without more, I infer that
the only relations contemplated are those which the law recognizes.
There can be no doubt that in an English Act of Parliament the word
"child" always applies to a legitimate child.... if the argument were
conceded, a bastard would share equally with a son - i.e., a legitimate
son, he being the only son known to our law - and this result appears to
me wholly repugnant and impossible." Therefore, in this case, the son of
one of two illegitimate daughters of the same parents was not deemed to
be a nephew of the other.
In the case of
Sara Ezra, a contention was advanced that the word 'child' in
Section 37 includes an illegitimate child, and this contention was based
upon Section 8 of the Act, which speaks of an illegitimate child. It was
argued that the reference to illegitimate child in Section 8 was
an indication that where the word 'child' was used without qualification
as in Section 37, it included children, both legitimate and
illegitilmate. In rejecting this contention
Panckridge J. held that "the word child does not include an
illegitimate child. Words defining relations in the Act refer to
relations flowing from lawful wedlock."
Here Panckridge J. referring to
Smith v. Massey , pointed out that, "This was a decision of 1906
and the present Act was passed in 1925. The ordinary rule for
interpretation of statutes, therefore, must apply, namely that where
words or expressions in a statute are plainly taken an earlier statute
in pari materia and have received judicial
interpretation, it must be assumed that the legislature was aware of
such interpretation and intended it to be followed in later enactments."
Section 100 of the Act, which falls under
the Part dealing with 'Testamentary Succession', says,
"Words expressing relationship denote only
legitimate relatives or failing such relatives reputed legitimate: In
the absence of any intimation to the contrary in a will, the word 'child',
the word 'son', the word 'daughter', or any word which expresses
relationship, is to be understood as denoting only legitimate relative,
or, where there is no such legitimate relative, a person who has
acquired, at the date of the will, the reputation of being such
relative."
Here too, the illegitimate child is
deprived of the share in a property, which is to be divided as stated in
the will, unless there is a contrary intention
of giving such a right to an illegitimate child.
The contrary
intention, namely, that the gift is intended to be taken by the
illegitimate relative, has been given effect to in the following cases:
Where the testator's wife is post child bearing at the date of the will
and has no legitimate children, a gift to his children would refer to
his existing children illegitimate. If the gift, however, is to children
in the plural and there is only one legitimate child and several
illegitimate children known to the testator, the latter will be included
to satisfy the language of the bequest. In a gift to the children born
and to be born, where at the date of the will there were only legitimate
children known to the testator, they will take. Where the testator made
gifts to several persons described as cousins and nieces and some of the
so-called cousins are illegitimate, the proper inference is, when the
residue is given under the description 'relatives' therein before named
that the illegitimate cousins were intended to be included in the word
'relatives'. Thus in the case of a will by a bachelor, his children must
mean illegitimate children as he can have no other. So also the gift to
the children of A by B who are within the prohibited degrees must
necessarily mean illegitimate children. In the same way, where a
testator knows that A is not legitimately married to B and then speaks
of children of A, he must be taken to intend the children of that
illegal union. But the above rule does not apply if it does not appear
that the testator knew that A and B were not lawfully married.Therefore,
where an unmarried person gave certain property to his mistress S and to
her sons by him in these terms: " the property is given to S for her
life and after her death her sons and heirs of me shall come into
possession of the property. It shall be no concern of mine"; held that
the provision that the property was to be no concern of the testator
showed that the illegitimate sons were meant and that the property
should go to them after the death of the mistress.
Where both legitimate and
illegitimate relatives exist, in a bequest to a relative described as
being of certain degree of relationship, if a legitimate relation of
that degree exists, oral evidence is inadmissible to show that an
illegitimate relation whose reputed relationship is of the same degree,
is the person meant.
There is no doubt that the language
of Section 100 allows wholesome application of English rulings and the
rules and principles laid down in them. The section is perfectly clear
that a person described with reference to his relationship, must be a
legitimate relative except when either there is a contrary intimation in
the will or that relative being illegitimate has acquired the reputation
of being 'such a relative' and there is no legitimate relative to fill
in that description. The question whether other conditions under which
illegitimate children and relatives have been allowed to come in under
descriptions of relationship would apply to the Indian Law under this
section is not very easy to answer. But if the strict literal
construction of the section is followed there does not appear to be any
room for any distinction or differentiation, which is not indicated by
the section itself. The expression 'such relative' at the end of the
section may mean such legitimate relative and would make the section to
apply to an illegitimate relative only when the illegitimate relative
has acquired the reputation of a legitimate relation. That however does
not seem to be the intention of the Legislature as shown by the
illustrations to this section, which are based upon the English law.
Section 109
says,
"Where a bequest has been made to any child or other lineal descendant
of the testator, and the legatee dies in the lifetime of the testator,
but any lineal descendant of him survives the testator, the bequest
shall not lapse, but shall take effect as if the death of the legatee
had happened immediately after the death of the testator, unless a
contrary intention appears by the will."
It is therefore, submitted that, the
phrase 'any child or other lineal descendants' in this section does not
include an illegitimate child. It is well established by authority that
illegitimate children are not included in the term 'child' in deeds or
other documents unless some repugnancy or inconsistency would result
from their exclusion. In Swaine v. Kennerly
, Lord Eldon, L.C., said, "the will itself must prove that illegitimate
children are included." The general rule is that an illegitimate child
is included in the term 'child' only when there is a
designatio personae. In the absence of any
indication in the language of this section it is proper to conclude that
the child or other lineal descendant cannot be held to embrace an
illegitimate child or descendant.
In the present case it was therefore held by
Agarwalla J. that, "while the terms of the will show that the
testator intended to provide for illegitimate son, it does not go
further than that, or show that he intended to provide for the
descendants of his illegitimate son."
Maintenance
of illegitimate child
A Christian child is bound to be maintained as per the secular law of
the land as provided by the Code of Criminal
Procedure, 1973. The main provision regarding grant of
maintenance is contained in Section 125 of
the Code.
It says, "Order
for maintenance of wives, children and parents,-
(1) If any person having sufficient means neglects or refuses to
maintain - ....
(b) his legitimate or illegitimate minor child, whether married or not,
unable to maintain itself, or
(c) his legitimate or illegitimate (not being a married daughter) who
has attained majority, where such child is, by reason of any physical or
mental abnormality or injury unable to maintain itself,...
.....a Magistrate of the first class
may, upon proof of such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or such child, father
or mother, at such monthly rate,as such Magistrate thinks fit, and to
pay the same to such person as the Magistrate may from time to time
direct...
(3) If any person so ordered fails without sufficient cause to comply
with the order, any such Magistrate may, for every breach of the order,
issue a warrant for levying the amount due in the manner provided for
levying fines, and may sentence such person, for the whole or any part
of each month's allowance for the maintenance or the interim maintenance
and expenses of proceeding, as the case may be, remaining unpaid after
the execution of such warrant, to imprisonment for a term which may
extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount
due under this section unless application be made to the Court to levy
such amount within a period of one year from the date on which it became
due."
Hence, it is now clear that even
though the codified law of the Christians of India does not speak of
maintenance of illegitimate children, the secular law governing the
country's masses has made it compulsory for parents of illegitimate
children to support them (if not the successors of the illegitimate
children) in the form of a monthly amount that is to be fixed by the
Magistrate.
This will ensure that the neglected
illegitimate child "are not left beggared and destituted on the
scrap-heap of the society and thereby driven to a life of vagrancy,
immorality and crime for their subsistence."
Similarities And Dissimilarities Between The Two Laws
There are plenty of similarities and a few dissimilarities between both
the systems.
These are enumerated below.
Similarities
(1) Both laws consider an illegitimate child to be a filius nullius.
(2) Acknowledgement as a son prima facie means acknowledgement as a
legitimate son under both the laws.
(3) Under both the laws the illegitimate child cannot inherit the
property of the putative father.
(4) An illegitimate child does not come under the definitions of a
'child' or a 'descendant' under both the laws.
(5) Legitimacy is acknowledged only through relations arising out of a
lawful wedlock.
(6) Both laws, it seems, confer no obligation of maintenance of
illegitimate children on either parent.
(7) But parents under both the laws are bound to maintain their
illegitimate children as per the secular law provisions in the country.
This duty however is limited to maintenance of their illegitimate
children and not their subsequent successors.
Dissimilarities
(1) Sunnis consider the illegitimate child as the child of the mother
therefore under Hanafi law of inheritance both the mother and the
illegitimate child have mutual rights of inheritance, whereas, under the
Shia law the illegitimate child is considered to owe no nasab to either
parent, i.e., it is neither the child of the mother nor that of the
father.
Whereas, under the Christian law the illegitimate child is
neither the child of the mother nor that of the father, i.e., he neither
inherits from the mother nor from the father unless as mentioned
specifically in the will of the testator.
(2) The rules of inheritance of the
Muslims are not codified, i.e., they entirely stem from the customary
law.
Whereas, the rules of inheritance of the Christians are contained
entirely in the Indian Succession Act, 1925.
(3) There is no import of the principles of English law in Muslim law,
whereas English law principles are imported fully in Christian law of
inheritance.
(4) There is still some doubt over the right to maintenance of the
Muslim illegitimate child as per the Muslim law, whereas the right of
Christian illegitimate child to maintenance is guaranteed under the
Code of Criminal Procedure, 1973.
(5) There is no mention in Muslim law of an illegitimate child
inheriting through a will, whereas, in Christian law it is to be
specifically mentioned in the will of the testator for the illegitimate
child to inherit.
Conclusion
: The apathy of illegitimate children
Justice, it seems, has pervaded the illegitimate children in our
country, for no mistake of their own. The legislature thinking reflects
awareness of this area and it has seized the problem in only a limited
sphere by conferring the status of legitimacy on the children born of
void and voidable marriages and granting them a right to maintenance
only under the Section 125 of the
Code of Criminal Procedure, 1973
It was considered that debarring the
illegitimate child from inheriting the property of its parents would
deter further generations from entering into a sexual relationship
outside marriage and would enforce a strict regime of proper sexual
mores in society. However, trends and statistics have shown that the
problem of illegitimate births in the country has been increasing at an
alarming rate, hence the above argument to justify the exclusion of
illegitimate children from inheriting property of parents cannot be
bought and falls flat.
The Courts have been asympathetic to
the demand of illegitimate children of maintenance and of a share in the
property of their parents. The Kerala High Court in the case of
Pavitri v. Katheesumma has adopted a rigid
stand in saying, "in our opinion, whether the principles of Hindu law
apply or the principles of Mohammedan law apply, the plaintiff in this
case who is an illegitimate daughter, is not entitled to claim
maintenance from the putative father or from assets left by him apart
from any rights that may have been conferred on her by Statute." The
Bombay High Court in the case Philomena Mendoza v.
Dara Nusserwanji has taken a stricter stance. Here
Chagla J. has opined, "the only duty of a
father to maintain such (illegitimate) children is merely a moral
obligation or a duty of imperfect obligation. A civil suit for
maintenance of such a child is not maintainable even on general
principles of justice, equity and good conscience." It is thus left to
imagination what the plight of the illegitimate children has been after
such 'shocking' and atrocious judicial pronouncements.
Let alone the Judiciary, the
Legislature too has been quite a fence sitter on this topic, which
requires immediate attention and proper legislation to remedy the
anomalies in law. It will not be wrong to say that quite ironically, the
reforms introduced by legislation have rather created anomalies and
confusion for more than improving the status of illegitimate children
which seems to have affected the Hindus, the Muslims and the Christians
most of all. For an example, The Hindu Succession Act, 1956, has perhaps
unintentionally altered the law relating to illegitimate sons, as under
the Act 'illegitimate sons' even of Sudras, do not have any right of
inheritance which they possessed formerly whereby on the demise of the
father he could claim partition and claim half of the share which he
would have received, had he been legitimate.
It is thus submitted that something
immediately be done to solve the problem of illegitimacy in India and
more so confer rights of property and maintenance on them. It is left to
imagination what the plight of illegitimate daughters has been over the
years, as they suffer doubly because of their illegitimacy and more
importantly because of their belonging to the exploited sex !
It is, therefore, an urgent need to analyze the various provisions
relating to the position of illegitimate children - their right to
property and their right to maintenance - under various personal laws in
India in order to have a stimulative thinking on the problem.
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The
author can be reached at: jayparikh@legalserviceindia.com /
