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Legitimacy in Law, Legitimacy in Fact and Intestate Succession: Issues and Challenges

  1. Introduction

Because of their parents’ illegal relationship, children become illegitimate. The legal status of a foetus, i.e., whether it is born legitimate or illegitimate, is extremely important in all cultures around the world. There is a classification of children as legitimate and illegitimate in both modern and historical societies. An illegitimate child never had the same privileges under the law as a legitimate child. Illegitimacy is described as a major social “issue” linked to moral and cultural decay. As the number of children born out of wedlock increases in India and around the world, a parallel debate about the fundamental importance of “traditional” heterosexual marriage to society’s stability and well-being has arisen.

Even under the personal laws, the right of illegitimate children and legitimate children for the purposes of inheritance are different. But society has some people who are not only rational but also liberal in their outlook and do not attach any stigma to a child born out of wedlock. With their liberal outlook, the law on the matter has also undergone amendments to accommodate the illegitimate child’s rights.

  1. Legal Status of a Child

Illegitimate children’s status in India is still stuck in the Middle Ages. Illegitimate children are seriously handicapped in all legal frameworks. An illegitimate child has the right to succeed to the property of only his or her mother under Hindu law, as established by the Hindu Succession Act, 1956, since they are considered to be related to their mother. The relationship between the child and the father is not recognised.

Laxmibai Nagappa vs Limbabai Nagappa, it was held that considering s.16 of the HMA and s.8 of the Hindu Succession Act, children from a void marriage are not illegitimate. Such child is covered by the expression son and daughter in Class I of the Schedule under s.8 of the HSA, moreover, will succeed as an heir to the property of parents.

However, there must be a legal wedlock for an infant to be considered valid under ordinary law. If a marriage is annulled due to a breach of legal criteria, any child born, as a result of the annulment, have the effect of stifling the children born to the parties to the marriage.

Illegitimate children cannot have the right to inherit from parents. However, as per the HSA, a child who is not legitimate is deemed to be related to mother by illegitimate kinship. That illegitimate child will have the right to get mother’s or illegitimate brother or sister’s property.

  1. Illegitimacy under Hindu Law

If a marriage satisfies every condition under the Hindu Law, set down in Sections 5 and 7 of the Hindu Marriage Act, 1955, then it is a legitimate marriage. Children conceived of a particularly substantial marriage are separated from everyone else. If the conditions laid down in Section 5, are not fulfilled, the marriage might not be a valid one as per Sections 11 and 12.

The legitimacy of a child is decided by the courts depending on the conditions mentioned below:

  1. A child from legal wedding is considered a legitimate child.

  2. If the parents of an infant are lawfully married at the time of the child's birth, the child is considered a legitimate child. Whereas, if the child is not born in such condition, then regarded an illegitimate child.

The said Act’s section 11 deals with void marriages. It means that if the marriage breaches any of the conditions set out in Section 520, paragraphs (i), (iv), and (v), the marriage would be null and void. The children born as a result of such a union are considered illegitimate.

Under the Hindu law the standard of legitimacy depends on the wedlock. Social wellbeing of offspring is controlled according to the acts of the parents. In case there is a lawful wedlock, then the child would be considered a legitimate child, on the other hand, if two people enter into a marriage that is not valid and they conceive a child, then that child would be an illegitimate one. That innocent offspring without knowing or having any authority over the demonstration of parents has to face the consequences.

Judicial Pronouncements on Illegitimacy: Courts have highlighted some case laws related to the concept of illegitimacy. They are:

In Revanasiddappa v. Mallikarjun, it was observed by the Supreme Court that, “the fundamental principles, the principle of equal status and opportunity, and individual dignity. Courts must keep in mind that while the relationship between the parents might not be legal, the status of such child must be considered separately regardless of the relationship of the parents because the child is innocent, should be given the rights same as the children born in legitimate marriages.

The SC in Jinia Keotin v. Kumar Sitaram Manjhi, observed, “An infant must be born in lawful wedlock to be considered valid under ordinary law. If the marriage is invalid, any child born will have the effect of bastardising the children born to the parties, either on its own or after it is proclaimed or annulled.”

In Thrumurthi Ranayammal v. Thrumurthi Muthamal, “The wordings of Section 16 of the Hindu Marriage Act, insofar as it is applicable to a marriage void under s.11, leads to an anomalous and surprising situation which could not have been imagined by the legislature,” the Madras HC observed. If the marriage is found void under s.11 or not, the condition and status of the child of a void marriage shall be the same without any discrimination.

4. Intestate Succession under the Hindu Succession Act, 1956

Sections 8 to 13 set out the general rules for succession when a Hindu male dies intestate.

In case if heirs in class I, by virtue into Section 16, offspring from invalid or voidable wedlock are deemed valid and are thus entitled to succession. In Jayalakshmi vs Ganesh Iyer, it was decided that a mother’s unchastity does not prevent her from inheriting from son.

Whereas, in class II, as compared to the mother, a father has no claim to the illegitimate son’s house. However, under s.16, a father has the right to a share of the children from a void or voidable union. In addition, a stepmother has no right to inherit from her stepson. Both brothers and sisters share the inheritance at the same time. The word ‘brother’ in this sense refers to a full and half-brother. Full brother, is often chosen over a half-brother (as per s.18). The intestate’s property does not belong to the uterine brother. When intestate and brother both are not legitimate children of their mother, however, they are considered brothers under this entry.

5. Issues and Challenges

  • Problems regarding Inheritance: When anyone dies intestate, the legal heir will not be able to easily access the wealth. In order to manage the deceased’s properties and debts, they will need to receive a succession certificate from the court. Obtaining a succession certificate is a time-consuming procedure in many cases, despite the fact that it establishes authenticity to the legitimate heirs.

Even if the legitimate heirs receive the succession certificate, if they do not comply with one another, the inheritance will become a complicated and conflict-ridden procedure. Although succession laws are based on traditional value systems and values, as culture changes, some of the features of these laws become obsolete. In this, the concept of legitimacy comes into picture, whether it is question of legitimate marriage or legitimacy of a child, is plays a crucial role in the law for the purposes of succession.

  • Legitimacy and Provisions: A 1976 amendment to the Hindu Marriage Act, Sec. 16, was added in order to safeguard the rights of those children who are born out of void and voidable wedlock. The Supreme Court noted in Revanasiddappa v. Mallikarjun that it is an essential function to protect certain kids from this stigma of bastardization. Consequently, although the alteration is worth noticing yet its reading is clear and derogatory expressions acknowledges the inferior status for the children who are not legitimate in both legal aspects and society.

An illegitimate child is regarded as a filius nullius in Muslim law, according to the Ithna-Ashari school. The Hanafi school, provides the mother with legal rights to feed and for nourishment of the children, has moderated this stance. In addition, both the mother and the infant possess mutual inheritance rights. The Indian Succession Act, 1925 regulates intestate succession for Christians and Parsis, makes no explicit provision for illegitimate children to be excluded from inheritance. Some courts have taken advantage of this to try to advance the rights of those children.

S.100 of the Act mentioned above regulates all personal laws for the purposes of testamentary succession, however, it does not include Muslim law, moreover, it mentions that in case the intention of the testator to provide a child who is not legitimate with the property, and if the intention is not expressly stated in will, the word “child” refers only to a child who is legitimate.

  • The Indian Succession Act, 1925 and Inheritance: As per the Act Illegitimate children are not allowed to inherit the property of the parents. Intestacy passes to the deceased’s spouse, or others “kindred” persons to them, according to S.32 of the Act. Those that are “descended from the same stock or shared ancestor” are referred to as “cindered of the deceased.”

Furthermore, the Act specifically forbids children who are illegitimate to inherit any property of their parents, unless it is specified by way of a Will, terms such as boy, son, daughter, signify a relative who is legitimate, or if there is no such person, then the one who has obtained the reputation of being such relative at the time of the Will.

The Act’s only reference to illegitimate children is in order to ascertain domicile, and that will be decided by the nation where that child’s mother resides. Furthermore, if a bequest is made according to the provision s.109, a child who is not legitimate should not be regarded as the legatee’s “lineal descent.” As a result, the Act only defines such simpliciter relations and does not apply to all other relationships except those resulting from lawful wedlock.

  • Discrimination: In various jurisdictions, including India, laws dealing with illegitimate children discriminate against the mother. For instance, The Hindu Succession Act, 1956, intestate succession rules ignore the relation between a father and a child which subsists from birth of the latter. Such practises aim in creating sort of a connection between childbirth and upbringing of the child, entrusting the child’s care entirely to the mother.

Such gendered conceptions have been widely criticised as a form of sex-based discrimination. As a result, the law’s mandate has been to eliminate such activities. This is embodied in Art. 15 of the Constitution, which specifically forbids gender discrimination, moreover, it brings forth some provisions especially for women.

  • Section 34 of the Indian Succession Act, 1925: It basically talks about the case of an illegitimate child. It can be read by taking into account the Government of India’s very early notification. A British law that applied in India was the Government of India Act of 1853. Under that act, the “Governor-General” had the authority to “make any grant or disposition of any property accruing to the Crown by forfeiture, escheat, or otherwise, to or in favour of any relative or relation of the persons from whom such property shall have accrued.” It appears that under the Indian Succession Act of 1865, a notice was given, giving effect to the practise of regranting property to certain relatives in cases of illegitimacy. Expenses of administration and some shares were removed from the property to be re-granted.

  • The Hindu Marriage Act 1955: As per Section 16(3), an illegitimate child’s inheritance rights are limited to their parents’ property and not those of any other relative, effectively excluding all ancestral properties. Legitimacy is derived from social concord, for which a number of different classes in the society are important to take part in the formation of the same.

  • Succession Principles for Christians, Parsis: Illegitimate child’s rights Children born out of wedlock are not recognised by Christian or Parsi law, which only deals with valid marriages. (Raj Kumar Sharma vs. Rajinder Nath Diwan). The relationship described in various parts of the Act concerning Christian and Parsi, a legal wedlock is the relationship which provides the rights in succession.

  1. Conclusion

The Indian society is a philosophical society, and as a result, it has undergone certain changes, with two broad groups of people holding opposing ideologies. One of the communities adheres to Hindu religion’s orthodox methods, in which raising an illegitimate child is frowned upon, and becoming one is even worse. A law amendment is needed to broaden the law’s reach in this regard, to involve both adopted and illegitimate offspring. Illegitimacy is described as a major social “issue” linked to moral and cultural decay.

There is recognition of illegitimacy in law, however, those people who are fair and liberal in the perspectives, they do not regard opinions with respect to legitimacy to be a stigma make up the other party in society. When time and circumstances dictate, laws in society are also changed. The awareness of the much-needed social changes and to be more liberal against people who are considered illegitimate, provisions in laws need to be changed in an appropriate way and serve the best interests of everyone.


Judicial References

  • Jane Antony vs V.M. Siyath Vellooparambil, 2008 (4) KLT 1002.

  • Jayalakshmi vs Ganesh Iyer AIR 1972 Mad 357.

  • Jinia Keotin v. Kumar Sitaram Manjhi (2003) 1 SCC 730, 733.

  • Kamulammal represented by Kattari Nagaya Kamarajendra Ramasami Pandiya Naicker v. T.B.K. Visvanathaswami Naicker & Ors AIR 1923 PC 8.

  • Raj Kumar Sharma vs. Rajinder Nath Diwan AIR 1987 Del 323.

  • Raja Jagdish Chandra Deo Dhabal Deb v. Rai Pada Dhal, AIR 1941 Pat. 458.

  • Revanasiddappa v. Mallikarjun (2011) 5 MLJ 392 SC.

  • Thrumurthi Ranayammal v. Thrumurthi Muthamal.


  • Hindu Marriage Act, 1955.

  • Hindu Succession Act, 1956.

  • Indian Succession Act, 1925.


Submitted by: Supriya Malviya

Student (II-Year), Maharashtra National Law University, Nagpur

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