RIGHT OF CHILDREN

(MAINTENANCE, INHERITANCE,
RIGHT OF ILLEGITIMATE CHILDREN,
ADOPTION ETC.)

:Prepared by:

H. S. MULIA

1
 Disclaimer

Views expressed in this

document are for
information and academic
purpose only.

2
MAINTENANCE OF CHILDREN:-
Section 20 of Hindu Adoption and
Maintenance Act imposes an
obligation upon the parents –
mother and father, both equally to
maintain the children, both
legitimate and illegitimate. This is a
unique feature of the Hindu law
where both the parents are equally
responsible to maintain the children.
3
S.20 (2) of HAM Act lays down that the
children are entitled to maintenance
during their minority. This right of
maintenance for the daughter is
extended till she gets married. The
parents are obliged to bear her
marriage expenses. However even after
marriage a minor married daughter, if
she is unable to maintain herself then
she can claim for maintenance under
S.125 CrPC. 4
When an application has been filed under
section S.24 and 25 of Hindu Marriage Act,
the children are also entitled to get
maintenance, if the wife has the
responsibility of maintaining them i.e. the
wife‘s right to maintenance also includes the
right of maintenance of the children. Section
26 of HM Act also provides that in any
proceeding under the HM Act the court can
from time to time pass interim orders and
make provisions in respect of the custody,
maintenance and education of the minor
5
children.
MAINTENANCE AND INHERITANCE
OF MUSLIM CHILDREN In
case of Legitimate Children the
maintenance of the children is rest
upon the father. In Hedaya, the
following verse of the Quran,
namely ―The maintenance of
woman who suckles an infant rests
on him to whom the infant is born.
6
Meaning thereby ― the
maintenance an infant child is
rested upon the father, because,
as maintenance is decreed to the
nurse on account of her
sustaining the child with her
milk, it follows that the same is
due to the child himself a fortiori.
7
Thus a father is bound to maintain his sons
until they attain puberty and his daughter
until they are married. He is also responsible
for the upkeep of his widowed or divorced
daughter, or a child in the custody of the
mother. The father is not bound to provide
separate maintenance for a minor or an
unmarried daughter who refuses to live with
him without reasonable cause. An adult son
need not to be maintained unless he his
infirm.
8
The father is not bound to maintain a
child who is capable of being
maintained out of his or her own
property. If the father is poor or infirm
then the mother is bound to maintain
the children. And failing her it is the
duty of the parental grandfather. Under
the Muslim Law, in case of Illegitimate
Children, the father was not bound to
maintain illegitimate children.
9
U/S 125 of the Criminal Procedure Code,
1973, however does bound the father to
pay a reasonable amount even if the
mother refuses to surrender the
illegitimate child to him. In a case it
was held, ―An agreement to maintain
an illegitimate child, for which the
Muhammadan Law makes no provision,
will in my opinion not have the effect of
defeating the provisions of any law.
10
As a matter of fact the maintenance of
the illegitimate children has been
statutorily recognized u/s 125 of the
CrPC in our country and it is in
consonance with this wholesome policy
that the offspring born under such
circumstances are to be provided for
and should not be left to the
misfortunes of the vagrancy and its
attended social consequences.
11
It should be noted that only
relatives with a legitimate blood
relationship to the deceased are
entitled to inherit from the
deceased under Islamic law.
Thus, illegitimate children
according to Islamic law and
adopted children have no part
in inheritance. 12
RIGHT OF HINDU ILLEGITIMATE CHILDREN &
ADOPTION.
Illegitimate means “something which is contrary
to law”. Illegitimate children as understood are
those children who are not born out of a lawful
wedlock. Not just the society but even the law has
discriminated against them in many ways.
However, with the emergence of a group of
people in the society who are rational and liberal
in their outlook and do not consider illegitimacy
as a stigma, the laws are also being amended
accordingly.
13
Introduction
“There are no illegitimate children – only
illegitimate parents.”
– Leon R. Yankwich

Under all societies in the world, the status

of a child i.e. whether it is born legitimate
or illegitimate has great consequence.
Both in the contemporary society and in
the historical society there is classification
of children as legitimate and illegitimate. 14
Premarital sexual relationship
and extramarital sexual
relationship are considered to be
a sin in almost all the societies.
So the resultant child of such
offensive relationship is also kept
in a state of sin. It is considered
illegitimate.
15
Many religions also view premarital
or extramarital sexual relationship
as an offensive relationship. Almost
all the personal laws in India are
religion-based and so even under
law, the children born out of such
offensive relationship are not given
equal status with the children born
out of a lawful wedlock.
16
The courts in India decide a child to be legitimate
or illegitimate depending on the following criteria:
A child born within lawful wedlock is a legitimate
child at the time of the birth of the child, if the
father and mother of the child are legally married
to each other, the child is a legitimate child. A
child born outside the lawful wedlock is an
illegitimate child. At the time of the birth of the
child, if the father and mother of the child are not
legally married to each other, the child is an
illegitimate child.

17
Illegitimacy under Hindu Law
Under the Hindu Law, if a marriage fulfills all
the conditions laid down in Section 7 and
Section 5 of the Hindu Marriage Act, 1955 it
is considered to be a valid marriage.
Children born of such a valid marriage are
alone considered legitimate. If the
conditions lay down under Section 5 of the
Act, are not satisfied, the resultant marriage
may be void or voidable marriage as per
Sections 11 and 12 of the Act.
18
Void marriage Section 11 of the
Hindu Marriage Act, 1955 defines a
void marriage. It says, if the
marriage is in contravention of any
of the conditions specified in
clauses (i), (iv) and (v) of Section 5
it shall be null and void. The
children born of such a marriage are
considered to be illegitimate
children. 19
Voidable marriage Section 12 of the
Hindu Marriage Act, 1955 lays down
the grounds of voidable marriages.
If the marriage is annulled under
anyone of the grounds under
Section 12, then the children born of
such a marriage are considered to
be illegitimate children.

20
Apart from the above, if proper
ceremonies are not performed at the
time of marriage as per Section 7 of the
Hindu Marriage Act, the resultant
marriage is not a valid marriage.
Children born of such marriage will also
fall under the category of illegitimate
children. Hence, children who will fall
under the category of the illegitimate
children under Hindu Law may be
summed up as follows: 21
Children born of void marriage;
Children born of annulled/voidable
marriage;
Children born of illicit relationship;
Children born through concubinage
and
Children born of a marriage which is
not valid for want of proper
ceremonies. 22
In essence, under Hindu law the rule of legitimacy
is dependent upon the marriage. The social status
of children is determined by the Act of their
parents. If they have entered into a valid
marriage, the children are legitimate; but if the
parents committed a folly and entered recklessly
into an invalid marriage or a child is conceived
even without entering into a relationship of
marriage the resultant innocent child are labelled
as illegitimate. The innocent child without having
any hold or control over the Act of its parents has
to suffer the consequence of it.

23
Rights of an Illegitimate Child in
the Past
The Hindu law relating to illegitimate
children can be discussed under the
following four heads:
Maintenance;
Inheritance;
Joint Family Property & Partition and
Guardianship
24
Maintenance:
Prior to the coming into force of the
Hindu Adoptions and Maintenance Act,
1956, an illegitimate son of a Hindu was
entitled to maintenance out of his
father’s coparcenary property and his
self acquired property. The father was
bound to maintain his illegitimate son
during the period of his minority,
irrespective of the fact whether he had
any property or not. 25
Among the Shudras, illegitimate sons
were entitled to maintenance if they
could not inherit or get a share on
partition. If, however, the mother was
not a Hindu, this right could not be
enforced under the Hindu law. The
illegitimate son could, in that case,
proceed against the putative father
under the Code of Criminal Procedure.
26
Illegitimate daughters had
formerly no remedy under Hindu
law. They were, however, entitled
to maintenance under the Code
of Criminal Procedure, which
right was enforceable only during
the lifetime of the putative father
and terminated on his death.
27
Inheritance:
An illegitimate child is not entitled to succeed to
his father. But under the Hindu Succession Act,
illegitimate children are deemed to be related by
illegitimate kinship to their mother and to one
another, and their legitimate descendants are
deemed to be related by legitimate kinship to
them and one another, and can therefore inherit
from each other under the said Act. An
illegitimate child can inherit the property of his or
her mother or of his or her illegitimate brother or
sister. A mother also can inherit the property of
her illegitimate child. The father has no right to
inherit the property of his illegitimate child. 28
Joint Family Property and Partition:
Unlike a legitimate son, an illegitimate son
does not acquire any interest in the
ancestral property in the hands of his father;
nor does he form a coparcenary with him, so
that during the life-time of his father, the
right of the illegitimate son is only limited to
maintenance. But the father may, in his
lifetime, give him a share of his property,
which may be a share equal to that of the
legitimate sons.
29
Guardianship:
A mother had a preferential right of
guardianship. The mother is
considered the natural guardian of an
illegitimate child. The father had no
right to the custody of the illegitimate
son during the letter’s minority, and
ordinarily, the mother of an
illegitimate child had the right to the
custody of the child during the years
30
Rights of an Illegitimate Child in the
present scenario
Maintenance:
Under the Hindu Adoptions and Maintenance
Act, 1956, a Hindu is bound, during his or
her life-time, to maintain his or her
illegitimate children. The obligation to
maintain illegitimate children is now upon
both, the father as well as the mother. Not
only the illegitimate son, but also an
illegitimate daughter, is entitled to be
maintained by her father and mother. 31
The right to be maintained,
however, extends only upto the
period of minority. An illegitimate
child is not entitled to be
maintained by his or her parents
after attaining majority. Such a child
will also not be entitled to be
maintained if he or she has ceased
to be a Hindu by conversion to
another religion. 32
Moreover, under the Hindu Adoptions
and Maintenance Act, an illegitimate
son of a deceased Hindu, so long as he
is a minor, and an illegitimate daughter
of a deceased Hindu, so long as she
remains unmarried, are entitled to be
maintained by the heirs of the deceased
out of the estate inherited by them or
by the persons who take the estate of
the deceased.
33
Such a son or daughter, however,
will not be entitled to maintenance
under the said Act if he or she has
ceased to be a Hindu by conversion
to another religion.
An illegitimate child who has ceased
to be a Hindu can, however, apply
for maintenance from his or her
father under the Code of Criminal
Procedure. 34
Inheritance:
After the passing of the Hindu
Succession Act, 1956, an
illegitimate child of a Shudra cannot
inherit the property of his or her
father. Formerly, an illegitimate son
of a Shudra if he was a dasiputra,
was entitled to succeed to his
father. Now, under the Act, he
cannot. 35
Joint Family Property and Partition:
Prior to the passing of the Hindu
Succession Act, on the death of his
father, an illegitimate son succeeded to
his estate as a coparcener with the
legitimate son of his father, and was
entitled to enforce a partition against
the legitimate son. Now, under the said
Act, however, he cannot succeed his
father, as he is not related to him by
legitimate kinship. 36
Guardianship:
The mother is considered the natural guardian. Now,
if both the parents of an illegitimate child are Hindus,
Buddhists, Jains or Sikhs by religion, or if one of the
parents of such child is a Hindu, Buddhist, Jain or Sikh
by religion, and such child is brought up as a member
of the tribe, community, group or family to which
such parent belongs or belonged, then the Hindu
Minority and Guardianship Act, 1956, applies to such
a child, and under section 6 of the Act, in the case of
an illegitimate boy or illegitimate unmarried girl, the
mother is the natural guardian, and after her, the
father is the natural guardian, and in the case of a
married girl, the husband is the natural guardian.
37
But under that Act, such a
guardian is not entitled to Act
as such, if he or she had
ceased to be Hindu or has
completely and finally
renounced the world by
becoming a hermit or an
ascetic. 38
Judiciary on Illegitimacy
The court has given some
landmark judgments in the
field of illegitimacy.
Some of such decisions are:

39
The Supreme Court of India in Revanasiddappa
v. Mallikarjun, (2011) 11 SCC 1 opined that:
the constitutional values enshrined in the
Preamble of our Constitution which focuses on the
concept of equality of status and opportunity and
also on individual dignity. The Court has to
remember that relationship between the parents
may not be sanctioned by law but the birth of a
child in such relationship has to be viewed
independently of the relationship of the parents. A
child born in such relationship is innocent and is
entitled to all the rights which are given to other
children born in valid marriage.
40
In Jinia Keotin v. Kumar Sitaram Manjhi,
(2003) 1 SCC 730, 733 the Supreme Court
has said:
Under the ordinary law, a child for being
treated as legitimate must be born in lawful
wedlock. If the marriage itself is void on
account of contravention of the statutory
prescriptions, any child born of such
marriage would have the effect, per se, or
on being so declared or annulled, as the
case may be, of bastardising the children
born of the parties to such marriage. 41
In Kamulammal (deceased) represented by Kattari
Nagaya Kamarajendra Ramasami Pandiya Naicker
v. T.B.K. Visvanathaswami Naicker (deceased) &
Ors, AIR 1923 PC 8, the Privy Council held when a Sudra
had died leaving behind an illegitimate son, a daughter,
his wife and certain collateral agnates, both the
illegitimate son and his wife would be entitled to an equal
share in his property. The illegitimate son would be
entitled to one-half of what he would be entitled had he
been a legitimate issue. An illegitimate child of a Sudra
born from a slave or a permanently kept concubine is
entitled to share in his father’s property, along with the
legitimate children.

42
In Raja Jogendra Bhupati Hurri Chundun
Mahapatra v. Nityanund Mansingh &
Anr, 1889-90 Indian Appeals 128 the
facts were that the Raja was a Sudra and
died leaving behind a legitimate son, an
illegitimate son and a legitimate daughter
and three widows. The legitimate son had
died and the issue was whether the
illegitimate son could succeed to the
property of the Raja. The Privy Council held
that the illegitimate son was entitled to
succeed to the Raja by virtue of
43
survivorship.
In Thrumurthi Ranayammal v.
Thrumurthi Muthamal, the Madras High
Court observed, “the wordings of Section 16
of the Hindu Marriage Act, in so far as it is
relevant to a marriage void under Section
11, leads to an anomalous and startling
position which could not have been
contemplated by the legislature. The
position and status of a child of void
marriage should obviously be the same
whether the marriage is declared a nullity
under Section 11 or otherwise.
44
In Shanta Ram v. Smt.
Dargubai, the Bombay High Court
observed that the children of void
marriages would be deemed
legitimate, irrespective of the
decree of nullity although they
would not acquire the right to
succession to the same extent as
is available to the children of valid
45
marriage.
Christian Law:-
Christian law of inheritance in India regulated by
Indian Succession Act, 1925 (ISA, 1925) steered
by rule of kinship recognizes only consanguinity
as a determining factor for title to succession and
does not protect the rights of adopted and
illegitimate child to inherit property. Christian law
though grants equal inheritance rights to sons
and daughters and protects right to property of
surviving spouse but allows only children born
from valid marriage to inherit.

46
No specific statute be it ISA,
1925 or Christian Marriage
Act, 1872 or Indian Divorce
Act, 1869 mentions adoption
or enables adoption among
Christians in India.

47
Adoption under Christian law is not clear as
no specific statute regulates adoption
among Christians in India. In absence of any
statutory code enabling adoption, Christians
in the past approached the court under the
provisions of Guardians and Wards Act, 1890
(GWA, 1890) for order of guardianship in
respect of the minor child or adopted under
the customary law. By the order of court one
could only become the guardian of minor
child.
48
GWA, 1890 was the only secular law that allowed
guardians to take care and have legal custody of
minor child called ‘ward’. Any child under the age
of 18 could be ward and the guardianship could
be revoked by the court or guardian. The child
after attaining majority has no rights or duties
towards his guardian. On dying intestate, neither
guardian nor the ward has any right in the
property of the other as enjoyed between child
and his parent. The only way for giving away the
property by the guardian to his ward is by
bequeathing the property in favour of ward by
way of Will.
49
If he fails to make a Will in favour of
his ward, then on his death his
property passes to his heirs and no
share is to be reserved for his ward.
GWA, 1890 gives right of legal
custody of minor to the guardian but
does not make him to be the ward’s
parent. Thus GWA, 1890 indirectly fills
void of having custody of minor in
absence of any secular code
50
regulating adoption in India.
Muslim law and Parsi law also do not
recognize adoption. Adoption is statutorily
recognized only under Hindu law via Hindu
Adoption and Maintenance Act, 1956 (HAMA,
1956) which allows Hindus, Sikhs, Buddhists
and Jains to legally adopt. Under HAMA,
1956 adopted child has the same rights as
natural born child of the parent(s). Adopted
son is treated as natural son for the purpose
of succession of property under Hindu
Succession Act, 1956.
51
Indian Succession Act, 1925 which regulates the
rules of intestate and testamentary succession
among Christians recgonise, rights for intestate
succession, only among relations by
consanguinity and does not expressly recognize
the rights of adopted child. Though for
testamentary succession, Schedule III of ISA, 1925
grants right to adopted children of the deceased;
his grandchidrren related through adoption and
the wife of his adopted son are considered to be
at par with natural born relations, with similar
succession rights but such rights are in specific
situations only.
52
Major emphasis of ISA, 1925 is to grant
succession rights to blood relations only. In
view of absence of the statutory recognition
of adopted child getting rights in intestate
succession and judicial activism of Supreme
Court granting rights to Indian citizen
irrespective of his religion to adopt and
confer rights to adopted children,
uncertainty prevails over inheritance rights
of adopted children in the property under
the Act of 1925.
53
Section 56. of the JJ Act, 2015 provides as under:-
(1) Adoption shall be resorted to for ensuring right
to family for the orphan, abandoned and
surrendered children, as per the provisions of this
Act, the rules made thereunder and the adoption
regulations framed by the Authority.
(2) Adoption of a child from a relative by another
relative, irrespective of their religion, can be made
as per the provisions of this Act and the adoption
regulations framed by the Authority.
(3) Nothing in this Act shall apply to the adoption
of children made under the provisions of the
Hindu Adoption and Maintenance Act, 1956. 54
The focus of the legislation is on the condition
of the child taken in adoption. The religious
identity of the child or of the parents who
adopt is not a precondition to the
applicability of the law. The law is secular and
deals with conditions of social destitution which
cut across religious identities. The legislature in
its wisdom clarifi ed in sub-section (2) of
Section 56 of the JJ Act, 2015 that the adoption
of a child from a relative by another relative,
irrespective of their religion, can be made as
per the provisions of JJ Act, 2015 and the
adoption regulations framed by the Authority. 55
Thank You
56