The Hindu Marriage Act, 1955 governs the marriages solemnized between Hindus and is also applicable to Sikhs, Jains, and Buddhists. The Hindu Marriage Act defines marriage and lays down the cohabiting rights for the persons governed by this Act. The Hindu Marriage Act further protects the rights of the children born falling within the purview of the said Act. It also deals with void (A marriage which is invalid at the very inception) and voidable marriage (A marriage which can be annulled or avoided at the option of either party).
Illegitimate Child
Children born from void or voidable marriages are considered to be illegitimate children. The Hindu Marriage Act also chalks out the rights and entitlement of such children in the properties of their parents.
Right of Illegitimate Children
Apart from the Hindu Marriage Act, the right of a child qua the properties of the parents, maintenance is governed by:
- Hindu Succession Act, 1956.
- Indian Succession Act, 1925.
- Hindu Adoption and Maintenance Act, 1956.
- The Code of Criminal Procedure, 1973.
Rights Of Illegitimate Children Under the Hindu Marriage Act, 1955
As per the Hindu Marriage Act, an illegitimate child can claim rights from:
- Mother’s property.
- Father’s property in case the biological father is identified.
The Hon’ble Courts have held that an illegitimate child must be treated at par with the legitimate child for claiming rights in the property of parents.
The Hon’ble Apex Court has further stated that an illegitimate child (born of a void or voidable marriage) can inherit their parent’s share of inheritance in a joint Hindu family property, as governed by the Mitakshara Law. However, an illegitimate child does not have coparcenary rights. It has been stated that such a child is not entitled to the rights to the property of another individual in the family.
The Hon’ble Supreme Court even suggested how the exact share of illegitimate child’s parent in the ancestral property can be ascertained. It can be ascertained by conducting a “notional partition” of the ancestral property, i.e., calculating the amount of property the parent would receive immediately before death.
In order to ascertain the interest of a deceased Hindu Mitakshara coparcener (a person who acquires a legal right in ancestral property by birth in a Hindu undivided family), the law specifies and mandates the assumption of a state of affairs immediately prior to the death of the coparcener, i.e., a divide of the coparcenary property between the deceased and other members of the coparcenary.
Upon determination of the share of the deceased parent in the property through notional partition, their heirs, including illegitimate children would be entitled to their portions in the share.
It has been observed by the Hon’ble Supreme Court that when the share of the deceased in the property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs, including illegitimate children shall be entitled to their shares in the property which would have been allotted to the deceased on the notional partition.
According to the Hindu Succession (Amendment) Act, 2005, the share of a deceased person in a joint Hindu family governed by Mitakashara law can be transferred upon the heirs by testamentary or intestate succession. Prior to the said amendment, devolution was only practiced through survivorship. Furthermore, the amendment laid out equal rights of succession to women as well as men.
Conclusion
In view of the provisions laid down in various acts, the illegitimate child is entitled to receive maintenance till the age of majority. Furthermore, the child can claim rights in the property of the parents in terms of Section 16 (3) of the Hindu Marriage Act, 1955. Such a child is to be treated at par with the legitimate child when claiming its share in the property. Such a child would however not have coparcenary rights and can claim share from the self-acquired assets as well as ascertained portion of the parent from the ancestral property.
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