Child custody & guardianship for illegitimate child

“Live-in relationship’ is a walk-in and walk-out relationship. There are no strings attached to this relationship, neither this relationship creates any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without consent of the other party and one party can walk out at will at any time.” 

The position of Live-in Relationships is not very clear in the Indian context but the recent landmark judgments given by the Honourable Supreme Court provides some assistance when we skim through the topic of Live-In in a socio legal context.

In SPS Bala subramanyam v Sruttayan, the SC had said, "If a man and woman are living under the same roof and cohabiting for a number of years, there will be presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate." This was a landmark case wherein the apex court upheld the legitimacy of the children born out of live in relationships and interpreted the statutes in concurrence with Article 39(f) of the Constitution of India which lays down the responsibility on the state to provide children with opportunities to develop in a healthy manner and safeguard their interests.

Maintenance which is often explained as the obligation to provide for another person forms an integral aspect of the legal angle of live in relationships with respect to the rights of the live in partners and the children born out of such a union. Under the Hindu Adoptions and Maintenance Act, 1956, section 21, a legitimate son, son of predeceased son or the son of predeceased son of pre-deceased son, so long he is minor and a legitimate unmarried daughter or unmarried daughter of son or the unmarried daughter of a pre-deceased son of pre-deceased son, so long as she remains unmarried shall be maintained as dependants by his/her father or the estate of his/her deceased father. A child born out of a live in relationship is however, not covered under this Section of the given Act and consequently, denied maintenance rights under this statute.

The Indian judiciary using its power to achieve the ends of social justice in a landmark case Dimple Gupta v Rajiv Gupta wherein the Supreme Court held that even an illegitimate child born out of an illicit relationship is entitled for maintenance under Section 125 of the CrPC (Code of Criminal Procedure 1973)which provides maintenance to children whether legitimate or illegitimate while they are minors and after they attain majority where such child is unable to maintain himself/herself. Even though there have been a number of cases upholding the maintenance rights of live in partners wherein the statutes were interpreted in a broad manner to included female live in partners as “legally wedded wives”, however, Savitaben Somabhai Bhatiya v State of Gujaratmade an exception where the live in partner who had assumed the role of second wife was not granted any maintenance whereas the child was granted maintenance.

Section 125 of the Code of Criminal Procedure 1973forms the model of a progressive legislation aiming to protect child rights in a situation where the people subjected to such laws are in no fault of their own as noted in Captain Ramesh Chander Kaushal v Mrs.Veen Kaushal. However, “the right to maintenance is condition to the fatherhood of the child being established.”

Since the Court seem to be treating children arising from legitimate and illegitimate relationships alike when it comes to maintenance rights, this has formed the foundation for the demand of equal treatment of such children when it comes to property rights which will be discussed in the next section.

The denial of maintenance rights to children born out of live in relations can also be challenged under Article 32 amounting to violation of fundamental rights guaranteed under the Constitution such as- Article 21 which provides the right to life and personal liberty and the such denial can deprive such individuals of their right to lead their lives with dignity and this upheld by the Kerela High Court in PV Susheela v Komalavally.

The unequal treatment of children of live in relationships and marital relationships even though both are perceived as legitimate in the eyes of law can amount to violation of Article 14 which promises equality before law [Bharata Matha & Ors. v R. Vijaya Renganathan & Ors]. The rights concerning such maintenance give effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves as discussed in Savitaben Somabhai Bhatiya v State of Gujarat Thus, maintenance rights continues to be a sensitive issue for children with respect to live in relationships.

Property rights basically refer to the inheritance rights of children born out of s*xual union revolving around live in relationships. Under the Hindu Succession Act, 1956, a legitimate Child, both son and daughter form a Class-I heir to the joint family property. On the other hand, under Hindu law an illegitimate child inherits the property of his mother only and not putative father as the illegitimacy makes it difficult to carry out such inheritance from the father’s side.

Legitimacy forms a pre requisite for inheritance rights under Hindu law and reasonable period of time is the primary condition to be fulfilled for this purpose. Consequently, the Courts in the past have always ensured that any child born from a live in relationship of a reasonable period of time should not be denied inheritance rights and this practice is keeping in sync with Article39(f) of the Constitution of India which supports the cause of State role in Child development even though theoretically such relationships often do not involve an attempt to marry and subsequently are illegitimate in nature. The Supreme Court inVidyadhari v Sukhrana Bai passed a landmark judgement wherein the Court granted inheritance to the children born from the live in relationship in question and ascribed them the status of “legal heirs”.

In Hindu law, the Hindu Minority and Guardianship Act 1956 clearly states in Section 6 that the father as the natural guardian of his minor legitimate children and as laid down in Gita Hariharan v Reserve Bank of India, the mother becomes the natural guardian in his absence which means when the father is incapable of acting as the guardian. However, Section 6(b) of the same act seems to be dealing with live in relationships in an indirect manner as it grants the custodial rights to the mother (natural guardian) in case of children born out of illegitimate relations.

THE REASON WHY I HAVE GIVEN SUCH A LENGHTY EXTRACT ABOUT LIVE IN RELATIONSHIP IS THAT BOTH THE MAN AND WOMAN AND THE CHILDREN HAVE THE SAME RIGHTS AS THAT OF A LEGALLY WEDDED COUPLE.THE CHILD CUSTODY IS THE DISCRETION OF THE COURT AND THE MOTHER WILL BEE THE NATURAL GAURDIAN TILL THE AGE OF 5 FOR THE BOY AND 12 FOR A GIRL CHILD.

Why do you want to complicate things even further?  Why dont you the child be at peace with the mother?