The question of the legitimacy of a child plays a vital role in granting rights. Anything which is not in accordance with the law is considered illegitimate, similarly, any child born out of wedlock is considered as an ‘illegitimate child. In India any child born during the continuation of marriage or 280 days after the dissolution of marriage, provided that the mother is still unmarried, then the child is considered as a legitimate child. The rights of illegitimate children have evolved significantly over the centuries.
The legitimacy of a child depends upon the marital status of his/her parents and its legality. If the parents of a child are not married or their marriage is not valid then the child born out of that particular marriage will be considered as ‘illegitimate’. To safeguard the rights of these innocent children two international provisions categorically give protection to them:
- Universal Declaration of Human Rights, firmly states that all children, whether born in or out of wedlock, shall enjoy the same social protection.
- United Nations Convention on Rights Of Children, 1989, ensures rights to each child irrespective of child’s, their parent’s or legal guardian’s colour, sex, language, religion, race, political or any other opinion, national, ethnic or social origin, property, disability, birth or other statuses.
In India, the laws which govern the rights of an illegitimate child are familial and personal laws. The rights of maintenance and inheritance granted under Hindu personal laws are far greater than that of Muslim and Christian personal laws. Rights granted under these personal laws are the right to property, maintenance, inheritance, adoption, guardianship, etc.
Rights of an Illegitimate Child
- In Hindus, the illegitimate child born out of the void or voidable marriage will get the same protection and rights which a legitimate child has. A Hindu child born out of wedlock has the right to property in his/her parent’s estate.
- Unlike Hindu law, Muslim law doesn’t recognize the rights of a child born out of wedlock. The Muslim personal laws strictly restrict themselves from recognizing a child born out of void/voidable marriage and don’t provide any rights to them.
- When it comes to Christian laws, only those children born from an annulled marriage are entitled to succeed, in the same manner as legitimate children, to the estate of the parent who at the time of the marriage was competent to contract.
Right to Maintenance
- According to Hindu Adoption and Maintenance Act, 1956 an illegitimate minor son and illegitimate unmarried daughter have the right to maintenance i.e. the father of the child is duty-bound to maintain his child irrespective of the fact whether the child is legitimate or not.
- But again when it comes to Muslims, a child born out of void/voidable marriage doesn’t have any right to maintenance and the father of the child is not duty-bound to maintain his illegitimate son/daughter.
- Only a category called Hanafis in the Muslim community recognizes an illegitimate child and is accepted as the lawful child of a mother.
- However, even though a Muslim father is not duty-bound to maintain his illegitimate child, still an illegitimate child has the right to seek maintenance under Section 125 Code of Criminal Procedure. Irrespective of what personal laws say, as per section 125 CrPC a child has the right to seek maintenance irrespective of the legitimacy of their birth.
Right of Inheritance
The question of the rights of inheritance to an illegitimate child is still unanswered in India. Because of the lack of a Uniform Civil Code, we don’t have standard guidelines on inheritance rights.
- As per the Indian Succession Act, the right to inheritance is still not granted to an illegitimate child.
- As per Hindu personal laws, only those who are born out of void/voidable marriage have the right to inheritance in their parent’s property. These children have a right over the property of their parents as well as their ancestral property.
- The Muslim and Christian personal laws entirely discriminate against an illegitimate child in toto.
Right to Guardianship
- Amongst Hindus, first, the mother is the natural guardian of an illegitimate minor boy/girl and after her, it is the father.
- Amongst Muslims, since an illegitimate child belongs to no one, therefore they do not have any natural guardian. Sometimes if considered, then it’s the mother who is entitled to the custody of a child irrespective of the biological father’s demand.
- Amongst Christians, the mother is the natural guardian and she doesn’t need to inform the putative father about the birth of the child.
Despite all the rights that have been granted by different personal laws to an illegitimate child, one issue is still unsolved. None of the personal laws talks about an illegitimate child who is born as a result of a live-in relationship, pregnancy due to rape, or child whose parents never got married.