Property Rights Of Illegitimate Children in India

There are no illegitimate children – only illegitimate parents, Leon R Yankwich once said. The property rights of illegitimate children in India work on the basic principle mentioned in the Indian Constitution.

Table of Contents

Protection of children’s rights under Article 39(F)

Article 39 (F) of the Constitution prescribes that children should be given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity. Childhood and youth are protected against exploitation and against moral and material abandonment. Right to property is a constitutional right and Article 300A states that ‘no person shall be deprived of his property, save by the authority of law’.

Also read all about property rights in India

Who are defined as illegitimate children?

An illegitimate child is one, whose parents are not married, as per the law. A child conceived after the marriage is considered as legitimate. Under the Hindu law, a child will be termed as illegitimate in the following conditions:

Children born of void marriages.
Children born of annulled/voidable marriages.
Children born of illicit relationships.
Children born through concubines.
Children born of a marriage, not valid for want of proper ceremonies.

Also read: All about property rights of the second wife and her children

Property rights of illegal children under Hindu Marriage Act

Section 16 (3) of the Hindu Marriage Act, 1955, governs the inheritance rights of illegitimate children. As per Section 16 (3), illegitimate children are ‘only entitled to the property of their parents and not of any other relation’. Apart from Hindus, the law is also applicable to Sikhs, Jains and Buddhists. This was interpreted as illegitimate children having the right in their parents’ self-acquired property and not in ancestral property.

In the Bharatha Matha & Another Versus R Vijaya Renganathan & Others case (2010) and the Jinia Keotin Versus Kumar Sitaram (2003) case, the apex court had also taken the stand that children born out of void marriages were not entitled to claim ancestral property of their father and could only stake a claim in his self-acquired property. But,

The Supreme Court , however, held that illegitimate children have the right in their parent’s self-acquired as well as ancestral properties under the Hindu Marriage Act while giving its verdict in Revansiddappa & Others Versus Mallikarjuna & Others in 2011.

“The relationship between the parents may not be sanctioned by law, but the birth of a child in such a relationship has to be viewed independently of the relationship of parents. A child born in such a relationship is innocent and entitled to all the rights, which are given to other children born in valid marriages. This is the crux of Section 16 (3),” a bench of justice GS Singhvi and justice AK Ganguly ruled.

“If they were declared legitimate, then, they cannot be discriminated against and they will be on a par with other legitimate children and be entitled to all the rights in the property of their parents, both, self-acquired and ancestral… We find it interesting to note that the legislature has advisedly used the word ‘property’ and has not qualified it with either self-acquired property or ancestral property. It has been kept broad and general,” it further added.

The SC, however, ruled that illegitimate children would only be entitled to a share in their parents’ property, but in case of joint family property, they cannot claim it on their own.

However, differing with the view taken by coordinate benches in three case, the matter was referred to a three- judge Bench. In November 2022, the SC while hearing a civil appeal said that the reference on the issue of illegitimate children’s right in their father’s ancestral property is in the case is still pending consideration for a larger Bench. It also directed the registry to place the matter before the Chief Justice of India.

Note, the rights of illegitimate children under the Hindu Law were dismal prior to the Marriage Laws (Amendment) Act, 1976, which amended Section 16 of the Hindu Marriage Act, 1955.

See also: Property rights of daughters under Hindu Succession Act

Maintenance of illegitimate children

Section 20 of the Hindu Adoptions and Maintenance Act, 1956, established that a Hindu is bound to maintain his illegitimate children.

A man cannot run away from paying maintenance to an illegitimate child even if he has entered into a settlement deed to part away with the mother before the birth of the child, a Delhi court held in 2014.

Latest update

Children from invalid marriage have right in ancestral property: SC

Children born put of a void or a voidable marriage are considered legitimate in the eyes of the law, and they have a right in theirs parents’ ancestral property under the Hindu succession law, the Supreme Court said on September 1, 2023. A three-judge Bench of the top court also added that a child under Section 16(1) and Section 16(2) of Hindu Marriage Act (HMA) would be a legitimate kin under the Hindu Succession Act (HSA). “We have now formulated conclusion: a child of a marriage which is null and void is statutorily conferred with the legitimacy; in terms of 16(2) (of the Hindu Marriage Act) where a voidable marriage is annulled, a child begotten before degree is deemed to be legitimate,” the Bench headed by Chief Justice DY Chandrachud said in the judgement.

Was this article useful?

😃 (6)
😐 (0)
😔 (0)

Sunita Mishra

An alumna of the Indian Institute of Mass Communication, Dhenkanal, Sunita Mishra brings over 16 years of expertise to the fields of legal matters, financial insights, and property market trends. Recognised for her ability to elucidate complex topics, her articles serve as a go-to resource for home buyers navigating intricate subjects. Through her extensive career, she has been associated with esteemed organisations like the Financial Express, Hindustan Times, Network18, All India Radio, and Business Standard.

In addition to her professional accomplishments, Sunita holds an MA degree in Sanskrit, with a specialisation in Indian Philosophy, from Delhi University. Outside of her work schedule, she likes to unwind by practising Yoga, and pursues her passion for travel.
[email protected]