Right To Property And Maintenance of Muslim And Christian Illegitimate Children

As the rich heritage and traditional values of the Muslim and Christian society have succeeded in preserving the restraints on sexual relations (in spite of the onslaught of the modern society the sexual mores have more or less been preserved), the problem of illegitimacy is presently not alarming in India (although it has been growing at an alarming rate) and thus there is no such urgency to enact special laws for the conferment of legitimacy on the children proved to be illegitimate. But there is also a pressing need to include special provisions in the existing laws of succession and maintenance for 'illegitimate' children at least in the Muslim and Christian laws at least, as that is what the paper is concerned with.

Muslim Law

Parentage is only established in the real father and mother of a child, and only if they beget the child in lawful matrimony. Muslim Law is devoted to the notion that an illegitimate child is a filius nullius, it owes no nasab to either parent. In Hanafi Law maternity is established in the case of every child but in Shiite Law, maternity is established only if the child is begotten in lawful wedlock. They (Sunnis or the Hanafis) adopt a view that an illegitimate child, for certain purposes, such as for feeding and nourishment, is related to the mother. For these purposes the Hanafi Law confers some rights on its mother. Macnaughten said, "a bastard child belongs, legally speaking, to neither of the parents and it is in every sense of the word filius nullius ; it should, until it has attained the age of seven years, be left in the charge of the mother. After that age, it may make its own election with which of the parties it will reside, to it may live apart from them altogether."

In Muslim Law, a son to be legitimate must be the offspring of a man and his wife or that of a man and his slave; any other offspring is the offspring of 'Zina', that is illicit connection, and hence is not legitimate. The term 'wife' essentially implies marriage but marriage may be entered into without any ceremony, the existence of marriage therefore in any particular case may be an open question. Direct proof may be available, but if there be no such proof, indirect proof may suffice. Now one of the ways of indirect proof is by an acknowledgement of legitimacy in favour of a son. This acknowledgement must be not merely of sonship, but must be made in such a way that it shows that the acknowledger meant to accept the other not only as his son, but also as his legitimate son.
Thus under Muslim Law acknowledgement as a son prima facie means acknowledgement as a legitimate son. Therefore, under the Muslim Law there is no rule or process, which confers a status of legitimacy upon children proved to be illegitimate.

The Privy Council in Sadiq Hussain v. Hashim Ali pithily laid down this rule:
"No statement made by one man that another (proved to be illegitimate) as his son can make other legitimate, but where no proof of that kind has been given, such a statement or acknowledgement is substantive evidence that the person so acknowledged is the legitimate son of the person who makes the statement, provided his legitimacy is possible."

"The above discussion shows that the rules of legitimacy under the Muslim Law are logically sound whereas the rules enacted under the Hindu Marriage Act, 1955 and Special Marriage Act, 1954 are illogical as they confer legitimacy upon the children proved to be illegitimate."

Right to property of illegitimate child

In Muslim law, the illegitimate child has no right to inherit property through the father and in the classical law, as well as in some modern Islamic jurisdictions, the mother of an illegitimate child may well find herself subject to harsh punishments imposed or inflicted on those found guilty of zina. Thus, the difficult status of legitimacy in Islamic law has very important consequences for children and their parents, especially mothers. Thus the difficulty of an illegitimate child in claiming property from parent/s.

Under no school of Muslim law an illegitimate child has any right of inheritance in the property of his putative father. Under the Hanafi law, it seems, the mother and her illegitimate children have mutual rights of inheritance. The illegitimate child inherits not only the property of its mother but also the property of all other relations with whom it is related through the mother.

Thus, when a Hanafi female dies leaving behind her husband and an illegitimate son of her sister, the husband will take one-half as a sharer and the residue will go to sister's son. Since the illegitimate child cannot inherit from the father, it cannot inherit from any other relation through the father.

In Pavitri v. Katheesumma Vaidiaalingam J. held, "Mohammadan law appears to impose no burden upon the natural father of an illegitimate child..."It would, therefore, be seen that an illegitimate child is not entitled to inherit the property from either parent under Shia law; and is entitled to inherit only from its mother under Hanafi law.

A reciprocal right of inheritance exists between him and his maternal relations. They are also his residuary heirs. Of course his other inheritors are his/her spouses, and his descendants, except his father and the latter's relations. Thus if an illegitimate person leaves a mother, a daughter and father, the daughter would get ½ and the mother 1/6th; the remainder would revert to them by return. The father would be excluded. Similarly an illegitimate brother and illegitimate uncle are not entitled to inherit. But a twin brother will inherit as his uterine brother (the twin brother is regarded as the son of only the mother and not that of the father, hence the term- uterine brother).

The Allahabad High Court has also laid down, "when there is the question of an illegitimate child inheriting the property of his or her mother or through his or her mother, and we have to find the mother's relations, whose property he or she can inherit, obviously, those relations, must be his or her mother's maternal relations. The illegitimate child has in law no father, and he or she can have nothing to do with his or her mother's relations by subsequent marriage, as a result of which new relationships arise. For purposes of inheritance there must be some relationship between the person, on whose death the succession has opened and the person who claims title to succeed. No relationship can possibly arise between an illegitimate child and a child born of his or her mother in lawful wedlock. We, therefore, hold that a son born of a woman after her marriage cannot be considered as 'her relation', whose property her illegitimate child is entitled to inherit."

Under the Shia law the illegitimate child does not inherit even through the mother. However the child of an imprecated mother does inherit from the mother and vice versa. In Shia law, illegitimacy acts as factor for total exclusion, and a bastard is not allowed to inherit either from mother or father.
A distinction however is made between a child of fornication and a child whose parentage has been disallowed by the father, that is, a child of imprecation. In case of fornication, the child is excluded from inheritance; while a child of imprecation, is allowed to inherit from the side of his mother. Hanafi law does not recognize this distinction. The child of fornication and imprecation are both regarded as illegitimate, and inherit from the mother's side.

Right to maintenance of illegitimate child

Muslim laws, it seems, confers no obligation of maintenance of illegitimate children on either parents, though the Hanafis recognize the obligation of nurture till the child attains the age of seven; the Shias do not recognize even this obligation.

Though the father under Muslim Law is not bound to maintain his illegitimate child, the researcher thinks Section 125 of the Criminal Procedure Code, 1973, (which should ensure that all such unfortunate children are maintained by their fathers) however binds such a father to pay for the maintenance of the child. The father would be liable to pay this amount even if the mother refuses to surrender the illegitimate child to him.

In the case, Sukha v. Ninni, it was held that, "An agreement to maintain an illegitimate child, for which the Mohammedan Law as such makes no provision, will in my opinion not have the effect of defeating the provisions of any law. As a matter of fact, maintenance of illegitimate children has been statutorily recognized under Section 125 of the Criminal Procedure Code of 1973 in our country and it is in consonance with this wholesome policy that the offsprings born under such circumstances are to be provided for and should not be left to the misfortunes of vagrancy and its attendant social consequences."

Whereas, in Pavitri v. Katheesumma where an illegitimate daughter born to a Muslim father and a Hindu mother brought a claim for maintenance from the assets of the dead father it was held that though "an illegitimate does not inherit properties of its putative father or his relations and from this it would follow that an illegitimate child cannot claim maintenance from the assets left by its putative father and which are in the hands of the heirs of the putative father ....even though S.125 of the Cr P C imposes a statutory obligation on a Muslim father to maintain his child even an illegitimate."

The Court further held, "whether the principles of Hindu Law apply or whether the principles of Muslim Law apply, the plaintiff in this case who was an illegitimate daughter born of a Mohammedan male and a Hindu female was not entitled to claim maintenance from the putative father or from the assets left by him apart from any rights that may have been conferred on her by Statute (Cr P C). Since the plaintiff had not based her claim upon any statutory right her suit for recovery of maintenance from the assets of her putative father was bound to fail."

Christian Law

The rules concerning the right to property of Christian children are contained in the Indian Succession Act, 1925. Therefore the following discussion on the right to property of Christian illegitimate children shall be based on the relevant provisions of the above-mentioned Act.

Right to property of illegitimate child

There is nothing in the Act that speaks of an illegitimate child's right to property but in various Sections of the Act an illegitimate child's claim to be even a child (within the strict meaning of the term "child") is negated.

An in-depth study of Part IV of the Act, which deals with 'consanguinity' reveals that the Act contemplates only those relations which the law recognizes, i.e., relations flowing from lawful wedlock.

Section 37 which says, "where the intestate has left surviving him a child or children, but no more remote lineal descendant through a deceased child, the property shall belong to his surviving child, if there is only one, or shall be equally divided among all his surviving children", also points out to the proposition that the word child does not include an illegitimate child.

Batchelor J. opined in Smith v. Massey that, " since the Act speaks of certain relations, without more, I infer that the only relations contemplated are those which the law recognizes. There can be no doubt that in an English Act of Parliament the word "child" always applies to a legitimate child.... if the argument were conceded, a bastard would share equally with a son - i.e., a legitimate son, he being the only son known to our law - and this result appears to me wholly repugnant and impossible." Therefore, in this case, the son of one of two illegitimate daughters of the same parents was not deemed to be a nephew of the other.

In the case of Sara Ezra, a contention was advanced that the word 'child' in Section 37 includes an illegitimate child, and this contention was based upon Section 8 of the Act, which speaks of an illegitimate child. It was argued that the reference to illegitimate child in Section 8 was an indication that where the word 'child' was used without qualification as in Section 37, it included children, both legitimate and illegitimate. In rejecting this contention Panckridge J. held that "the word child does not include an illegitimate child. Words defining relations in the Act refer to relations flowing from lawful wedlock."

Here Panckridge J. referring to Smith v. Massey, pointed out that, "This was a decision of 1906 and the present Act was passed in 1925. The ordinary rule for interpretation of statutes, therefore, must apply, namely that where words or expressions in a statute are plainly taken an earlier statute in pari materia and have received judicial interpretation, it must be assumed that the legislature was aware of such interpretation and intended it to be followed in later enactments."

Section 100 of the Act, which falls under the Part dealing with 'Testamentary Succession', says,
"Words expressing relationship denote only legitimate relatives or failing such relatives reputed legitimate: In the absence of any intimation to the contrary in a will, the word 'child', the word 'son', the word 'daughter', or any word which expresses relationship, is to be understood as denoting only legitimate relative, or, where there is no such legitimate relative, a person who has acquired, at the date of the will, the reputation of being such relative."

Here too, the illegitimate child is deprived of the share in a property, which is to be divided as stated in the will, unless there is a contrary intention of giving such a right to an illegitimate child.

The contrary intention, namely, that the gift is intended to be taken by the illegitimate relative, has been given effect to in the following cases: Where the testator's wife is post child bearing at the date of the will and has no legitimate children, a gift to his children would refer to his existing children illegitimate. If the gift, however, is to children in the plural and there is only one legitimate child and several illegitimate children known to the testator, the latter will be included to satisfy the language of the bequest. In a gift to the children born and to be born, where at the date of the will there were only legitimate children known to the testator, they will take. Where the testator made gifts to several persons described as cousins and nieces and some of the so-called cousins are illegitimate, the proper inference is, when the residue is given under the description 'relatives' therein before named that the illegitimate cousins were intended to be included in the word 'relatives'.

Thus in the case of a will by a bachelor, his children must mean illegitimate children as he can have no other. So also the gift to the children of A by B who are within the prohibited degrees must necessarily mean illegitimate children. In the same way, where a testator knows that A is not legitimately married to B and then speaks of children of A, he must be taken to intend the children of that illegal union. But the above rule does not apply if it does not appear that the testator knew that A and B were not lawfully married.Therefore, where an unmarried person gave certain property to his mistress S and to her sons by him in these terms: " the property is given to S for her life and after her death her sons and heirs of me shall come into possession of the property. It shall be no concern of mine"; held that the provision that the property was to be no concern of the testator showed that the illegitimate sons were meant and that the property should go to them after the death of the mistress.

Where both legitimate and illegitimate relatives exist, in a bequest to a relative described as being of certain degree of relationship, if a legitimate relation of that degree exists, oral evidence is inadmissible to show that an illegitimate relation whose reputed relationship is of the same degree, is the person meant.
There is no doubt that the language of Section 100 allows wholesome application of English rulings and the rules and principles laid down in them. The section is perfectly clear that a person described with reference to his relationship, must be a legitimate relative except when either there is a contrary intimation in the will or that relative being illegitimate has acquired the reputation of being 'such a relative' and there is no legitimate relative to fill in that description. The question whether other conditions under which illegitimate children and relatives have been allowed to come in under descriptions of relationship would apply to the Indian Law under this section is not very easy to answer.

But if the strict literal construction of the section is followed there does not appear to be any room for any distinction or differentiation, which is not indicated by the section itself. The expression 'such relative' at the end of the section may mean such legitimate relative and would make the section to apply to an illegitimate relative only when the illegitimate relative has acquired the reputation of a legitimate relation. That however does not seem to be the intention of the Legislature as shown by the illustrations to this section, which are based upon the English law.
Section 109 says,

"Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime of the testator, but any lineal descendant of him survives the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the will."

It is therefore, submitted that, the phrase 'any child or other lineal descendants' in this section does not include an illegitimate child. It is well established by authority that illegitimate children are not included in the term 'child' in deeds or other documents unless some repugnancy or inconsistency would result from their exclusion.

In Swaine v. Kennerly, Lord Eldon, L.C., said, "the will itself must prove that illegitimate children are included." The general rule is that an illegitimate child is included in the term 'child' only when there is a designatio personae. In the absence of any indication in the language of this section it is proper to conclude that the child or other lineal descendant cannot be held to embrace an illegitimate child or descendant.

In the present case it was therefore held by Agarwalla J. that, "while the terms of the will show that the testator intended to provide for illegitimate son, it does not go further than that, or show that he intended to provide for the descendants of his illegitimate son."

Maintenance of illegitimate child

A Christian child is bound to be maintained as per the secular law of the land as provided by the Code of Criminal Procedure, 1973. The main provision regarding grant of maintenance is contained in Section 125 of the Code.
It says, "Order for maintenance of wives, children and parents,-
(1) If any person having sufficient means neglects or refuses to maintain - ....
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself,...

.....a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate,as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of such warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due."

Hence, it is now clear that even though the codified law of the Christians of India does not speak of maintenance of illegitimate children, the secular law governing the country's masses has made it compulsory for parents of illegitimate children to support them (if not the successors of the illegitimate children) in the form of a monthly amount that is to be fixed by the Magistrate.

This will ensure that the neglected illegitimate child "are not left beggared and destituted on the scrap-heap of the society and thereby driven to a life of vagrancy, immorality and crime for their subsistence."

Similarities And Dissimilarities Between The Two Laws

There are plenty of similarities and a few dissimilarities between both the systems.

These are enumerated below.
Similarities
(1) Both laws consider an illegitimate child to be a filius nullius.
(2) Acknowledgement as a son prima facie means acknowledgement as a legitimate son under both the laws.
(3) Under both the laws the illegitimate child cannot inherit the property of the putative father.
(4) An illegitimate child does not come under the definitions of a 'child' or a 'descendant' under both the laws.
(5) Legitimacy is acknowledged only through relations arising out of a lawful wedlock.
(6) Both laws, it seems, confer no obligation of maintenance of illegitimate children on either parent.
(7) But parents under both the laws are bound to maintain their illegitimate children as per the secular law provisions in the country. This duty however is limited to maintenance of their illegitimate children and not their subsequent successors.

Dissimilarities
(1) Sunnis consider the illegitimate child as the child of the mother therefore under Hanafi law of inheritance both the mother and the illegitimate child have mutual rights of inheritance, whereas, under the Shia law the illegitimate child is considered to owe no nasab to either parent, i.e., it is neither the child of the mother nor that of the father.
Whereas, under the Christian law the illegitimate child is neither the child of the mother nor that of the father, i.e., he neither inherits from the mother nor from the father unless as mentioned specifically in the will of the testator.
(2) The rules of inheritance of the Muslims are not codified, i.e., they entirely stem from the customary law.
Whereas, the rules of inheritance of the Christians are contained entirely in the Indian Succession Act, 1925.
(3) There is no import of the principles of English law in Muslim law, whereas English law principles are imported fully in Christian law of inheritance.
(4) There is still some doubt over the right to maintenance of the Muslim illegitimate child as per the Muslim law, whereas the right of Christian illegitimate child to maintenance is guaranteed under the Code of Criminal Procedure, 1973.
(5) There is no mention in Muslim law of an illegitimate child inheriting through a will, whereas, in Christian law it is to be specifically mentioned in the will of the testator for the illegitimate child to inherit.

Conclusion: The apathy of illegitimate children Justice, it seems, has pervaded the illegitimate children in our country, for no mistake of their own. The legislature thinking reflects awareness of this area and it has seized the problem in only a limited sphere by conferring the status of legitimacy on the children born of void and voidable marriages and granting them a right to maintenance only under the Section 125 of the Code of Criminal Procedure, 1973
It was considered that debarring the illegitimate child from inheriting the property of its parents would deter further generations from entering into a sexual relationship outside marriage and would enforce a strict regime of proper sexual mores in society. However, trends and statistics have shown that the problem of illegitimate births in the country has been increasing at an alarming rate, hence the above argument to justify the exclusion of illegitimate children from inheriting property of parents cannot be bought and falls flat.

The Courts have been asympathetic to the demand of illegitimate children of maintenance and of a share in the property of their parents. The Kerala High Court in the case of Pavitri v. Katheesumma has adopted a rigid stand in saying, "in our opinion, whether the principles of Hindu law apply or the principles of Mohammedan law apply, the plaintiff in this case who is an illegitimate daughter, is not entitled to claim maintenance from the putative father or from assets left by him apart from any rights that may have been conferred on her by Statute." The Bombay High Court in the case Philomena Mendoza v. Dara Nusserwanji has taken a stricter stance. Here Chagla J. has opined, "the only duty of a father to maintain such (illegitimate) children is merely a moral obligation or a duty of imperfect obligation. A civil suit for maintenance of such a child is not maintainable even on general principles of justice, equity and good conscience." It is thus left to imagination what the plight of the illegitimate children has been after such 'shocking' and atrocious judicial pronouncements.

Let alone the Judiciary, the Legislature too has been quite a fence sitter on this topic, which requires immediate attention and proper legislation to remedy the anomalies in law. It will not be wrong to say that quite ironically, the reforms introduced by legislation have rather created anomalies and confusion for more than improving the status of illegitimate children which seems to have affected the Hindus, the Muslims and the Christians most of all. For an example, The Hindu Succession Act, 1956, has perhaps unintentionally altered the law relating to illegitimate sons, as under the Act 'illegitimate sons' even of Sudras, do not have any right of inheritance which they possessed formerly whereby on the demise of the father he could claim partition and claim half of the share which he would have received, had he been legitimate.

It is thus submitted that something immediately be done to solve the problem of illegitimacy in India and more so confer rights of property and maintenance on them. It is left to imagination what the plight of illegitimate daughters has been over the years, as they suffer doubly because of their illegitimacy and more importantly because of their belonging to the exploited sex !

It is, therefore, an urgent need to analyze the various provisions relating to the position of illegitimate children - their right to property and their right to maintenance - under various personal laws in India in order to have a stimulative thinking on the problem.

The author can be reached at: jayparikh@legalserviceindia.com / Print This Article

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