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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