WHO IS AN ILLEGITIMATE CHILD UNDER HINDU LAW? WHAT ARE HIS/HER PROPERTY RIGHTS?CAN AN ILLEGITIMATE CHILD FILE A SUIT FOR PARTITION? WHAT IS DYING INTESTATE?
[This is an excerpts from the citation 2008(6)AIR Kar R 267- a judgment delivered by the Hon’ble Justice N.Kumar of High Court of Karnataka ]
Marriage according to Hindu Law is holy union, it is not a contract but a ‘samskara’ or ‘sacrament,’ though polygamy was not permitted, a second marriage was allowed in a restricted sense and that too under stringent circumstances. And Monogamy was the rule and ethos of the Hindu society which rejected the second marriage altogether. The influence of religion in all marriage did not allow polygamy to become a part of Hindu culture. Therefore noting the various enactments which dealt with the marriage through out the length and breadth of this Country, it became necessary for the parliament to amend and codify the law relating to marriage among Hindus and that is how the enactment of Hindu Marriage Act 1955 was passed.
Though Prior to the Hindu Marriage Act 1955 there was no prohibition for a Hindu to have more than one wife, all the children born to the wives were treated as legitimate children and members of joint family or co-parcenery. Only a child born to concubine was treated as an illegitimate child. Each one of these legitimate children had a right to maintain a suit against their father for partition and separate possession of their legitimate share either in the joint family property or in the co-parcenery property.
After the passing of the Hindu Marriage Act 1955 a prohibition was imposed on the Hindus to enter into second marriage during the life time of the spouse. The personal law of Hindus to that extent ceases to have effect. The Act had over riding effect and the Personal Law of Hindus in so far as the marriage are concerned stood amended in terms of the Act. Therefore second marriage of a Hindu during the life time of the spouse is prohibited and such a marriage was declared as void. A son born to the said void marriage was deprived of a right under the Traditional Hindu Law because the provisions of the Act, excluded the application of personal law in this regard and under the Hindu Succession Act, 1956, for short hereinafter referred to as “Succession Act”, because he was not a legitimate son. The Parliament after noticing this injustice done to an illegitimate child for a folly of its parents thought of introducing Section 16 of the Act. It reads as under:
“Legitimacy of children of void and voidable marriages-(1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws(Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a Petition under this Act.
Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.
Nothing contained in sub-section(1) of sub-section(2) shall be construed as conferring upon any child of marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of the parents”.
By Section 16, what the parliament intended to do was to remove the stigma of basterliness attached to a child born of such void marriage and the child has been relegated the status of a legitimate child. Therefore, after the amendment Act, 1976, which introduced Section 16 into the Act, the illegitimate son has been given equal status as that of a legitimate son. That is precisely what is sought to be done under Section 16(1) and (2) of the Act, However, the parliament was conscious of the consequences of such status being given to an illegitimate child as it would affect other persons who are in no way responsible for the birth of an illegitimate child. Therefore, they made it clear by introducing Section 16(3) to the effect that such an illegitimate son who is admitted to be an illegitimate son by virtue of Section 15(1) and (2), will have a right only in the properties of the parents and none else. Thus, the conferring of the status did not affect the rights of the persons other than the parents in the property.
CAN AN ILLEGITIMATE SON FILE A PARTITION SUIT? OR CLAIM SHARE IN THE SEPARATE/ SELF ACQUIRED PROPERTY OF THE PARENT DURING THEIR LIFE TIME?
Section 307 of Hindu Law by Mulla says “every adult coparcener is entitled to demand and sue for partition of the coparcenary property at any time”.
But the said right is confined to only coparcenary property and joint family property. The said right is not extended even in Hindu law to the separate or self/acquired property of the father. After the passing of the Succession Act, the rights of Hindus in respect of the property of the father is governed by the said enactment. The said enactment was passed to amend and codify the law relating, intestate succession among Hindus.
The word “Intestate” has been defined under section 3(g) meaning, a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect. In other words, if a person has made a testamentary disposition of his property and if such testamentary disposition is upheld, then his natural heirs have no right to succeed or to inherit the said property.(disposition by way of Will)
Section 6 of the Act deals with devolution of interest in coparcenary property. It provides that when a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act. Therefore, it is clear that in respect of a coparcenary property to which the Succession Act, 1956 is not applicable, such devolution of interest is governed by the Personal Law of Hindus. Coparcenary property devolves by survivorship and not by succession.
It is Section 8 which deals with the General Rules of succession in the case of males. It provides that property of a male Hindu dying intestate shall devolve according to the provisions of the Succession Act. Therefore, under the Succession Act, a legal heir of a person is entitled to property only on the death of the male dying intestate. In other words, he has no right to claim a share in the property during the lifetime of the male as defined in Section 8 of the Succession Act. Thus the property of a Hindu dying intestate devolves by succession only.
The principle underlying the concept is that the property to be divided is “Exvi termini” the property which has been previously held as Joint Property in coparcenary. The son’s right at birth, under the Mitakshara, is so connected with the right to share in, and to obtain partition of the estate, that it does not exist independently of the latter right. Thus under the Hindu law, the son acquires right to coparcenary property by birth. In otherwords he acquires title to the coparcenary property by birth. It is a vested right. It is that right in the property i.e the right to joint enjoyment of the property, which is transformed into an enjoyment in severally through the process of partition. It is that antecedent title which the members of a coparcenary possess by birth jointly with other members of the coparcenary which is specifically defined at the partition.
Existence of an antecedent title is a prerequisite for enforcement of a right to partition. Separate or self-acquired property of a member of the coparcenary or joint family cannot be the subject matter of partition amongst the member of a coparcenary or Joint family. No child whether legitimate or illegitimate, acquires any right by birth in the separate property or the self-acquired property of its parents. Thus they acquire no title to such property by birth. They do not possess any antecedent title to such property.
The right to such property accrues to them only on their parents dying intestate. It is the death of the parents and not the birth of the child, which confers right on such property. In respect of such property, both legitimate and illegitimate child, succeed in accordance with the provisions of Sections 8 and 15 of the Succession Act, if the parents die intestate. It is only after the event, i.e. death, the suit for partition could be filed. Therefore, it follows that no suit for partition could be filed against the parents during their life time, in respect of separate self acquired property of parents. The illegitimate son is not a coparcener. He has no right in coparcenary property. However, he has a right in the share of the father in coparcenary property. That right he can exercise only on his father dying intestate. He has no right by birth in the separate or self acquired property of his parents. His right accrues only after his parents die intestate. Therefore, a son born of void or voidable marriage(illegitimate son) can never maintain a suit against his/her parent in respect of the property of his or her parent during their life time.
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