The India Societal set-up has subjected children born out of wedlock or adopted children to a certain degree of social stigma, which is also found to manifest itself in the legal aspects which come into play as regards the rights and legal status of such children to inherit property is concerned. Since there is no Uniform Civil Code in the country at the moment, the position regarding children born out of wed lock, and adopted children remains to be governed by the personal laws and practices of each religion. This article seeks to shed light on the right to inherit property by children who are either illegitimate, adopted or stepchildren.
Illegitimate Children – Inheritance Rights under Personal Laws
The rights of an illegitimate child to inherit properties is different under each religion, and while inheritance rights under Hindu Law are codified under the Hindu Succession Act, the Muslim Laws on succession are guided by customary practices and are not codified as such.
Further, inheritance by Parsis, Jews and Christians is governed by the provisions of the Indian Succession Act.
- Void or Invalid Marriage Under Hindu law – Permits inheritance of parent’s property, both self-acquired as well as ancestral
The inheritance rights of illegitimate children have to be understood in light of both the Hindu Marriage Act, as well as the Hindu Succession Act. It is important to understand the legal concept of illegitimacy as per the governing provisions of the Hindu Marriage Act, which provides that children born out of a valid marriage as per law are legitimate. Section 16 of the Hindu Marriage Act provides that children born out of void or voidable marriages shall be entitled to their parent’s property, and shall be considered to be legitimate, whether a decree of nullity is granted or not.
However, such children shall not become a coparcener in the joint family and their limited share would be the notional share of their parents.
- Children Born Out of a Live-In Relationship
The Hon’ble Supreme Court in a recent judgment has clarified that in cases wherein it can be seen that the man and the woman have been living together as husband and wife for a long time, then there is a presumption to their marriage, unless refuted otherwise, and their children will have right to ancestral property as well.
- No right to inheritance under Muslim Law
Under Muslim Law, the child does not have any right of inheritance qua the properties of the father or mother under Sunni Law, however, under Hanafi law, the child does have inheritance right over the mothers’ property, and the mother may also inherit property from the illegitimate child.
- Inheritance under other Personal Laws
There are no rights granted to an illegitimate child under Christian Law. The law governing succession applicable on Parsis, Jews and Christians is codified under the Indian Succession Act, however, the same only mentioned devolvement upon children through consanguinity i.e. blood kinship and therefore does not grant any rights to illegitimate children for inheriting property through either of their parents.
Rights of adopted Children
Children that are adopted legally, either under the provisions of the Hindu Adoptions and Maintenance Act or under the Juvenile Justice Act, are considered to be at par with biological children, with respect to inheritance rights. The law does not distinguish between an adopted child and a biological child.
Under Hindu law, an adopted child shall be eligible for being admitted into the Hindu Undivided Family as a coparcener and shall have right to claim his share in the ancestral property.
However, such adopted child shall not have any legal right over his biological parents’ self-acquired or coparcenary property and the same stand relinquished upon the formal adoption being concluded. Needless to state, the biological parents may out of their own volition, leave any property for the biological child by way of a will.
While other personal laws, other than Hinduism do not recognize adoption under their personal laws, the Juvenile Justice Act permits any person, irrespective of their religion to adopt, and the Act mandates that once the adoption is concluded, the adoptive child shall have all rights and duties as that of a biological child.
Therefore, once the adoption is concluded, the right to inheritance shall be governed by the respective personal laws for succession, as the case may be.
Inheritance Rights for Stepchildren
Unless stepchildren are legally and formally adopted, they are not recognised as natural legal heirs and therefore do not have any right to inherit the properties of the step-parent in question. The Juvenile Justice Act permits the adoption of stepchildren under its overarching framework whereunder persons of any religious background may seek to adopt a stepchild after satisfying the eligibility criteria laid out therein.
Therefore, the step-children would not have any right as a coparcener in the ancestral or even self-acquired property of the step parent unless the same is specifically bequeathed by way of a will in their favour, under Hindu Succession Laws.
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