Legitimacy Of Children Under Muslim And Hindu Laws In India

Coverage of this Article

KEY TAKEAWAYS

-The word legitimacy originated from a Latin word ‘legitimare’ which means to make lawful. Oxford Dictionary has defined illegitimacy as, “(of a child) born of parents not lawfully married to each other”.

INTRODUCTION

-In every society, whether a child is born out of wedlock or outside of marriage has a great impact on the child.

SIMILARITIES UNDER HINDU AND MUSLIM LAW

-Acknowledgement as a son would mean acknowledgment as a legitimate son under both laws.

RIGHTS OF CHILDREN

GUARDIANSHIP

-In Muslim Law, illegitimate children do not have a natural guardian because they are considered to be children belonging to no one, and the biological father is not automatically considered the natural guardian of the illegitimate child. 

MAINTENANCE

-Muslim law, usually, confers no obligation of maintenance of illegitimate children on either parent. "An agreement to retain an illegitimate child, for whom the Mohammedan Law as such offers no provision, does not have the effect of defeating the provisions of any law," the court held in Sukha v. Ninni (1965). 

INHERITANCE

-Illegitimate children's rights are not recognised under Muslim law, and as a result, they have no right to inherit their parents' property or the property of their parents' relatives.

CASE LAWS

Muhammad Azmat v. Lalli Begum (1881)

-It had been decided in several cases that there need not be proof of an express acknowledgement, but an acknowledgement of children by a Mahomedan as his sons may be inferred from his having openly treated them as such.

Mohammed Ismail Khan vs. Mohammed Allahdad Khan (1887)

-When marriage cannot be proven by direct evidence and legitimacy cannot be established, Justice Mehmood found that Muslim law offers a method for establishing marriage and legitimacy as a matter of substantive law, which is paternity recognition.

Habibur Rahman v. Altaf Ali (1921)

-The object of a Muslim marriage is to legalise intercourse to bear children. It was observed in this case that legitimacy is recognised of a son if he is born of a man and his wife and otherwise the offspring is considered from an illicit relationship. 

CONCLUSION

-The rights conferred upon illegitimate children are limited and the limited nature of these rights is quite discriminatory. Illegitimate children suffer as a result of their parents' decisions, as well as for factors beyond their control. Furthermore, society adds to the pain of these children by stigmatising and deliberately discriminating against them in terms of social acceptance and interactions, since it is harsh and unconcerned about their well-being.

KEY TAKEAWAYS

• The word legitimacy originated from a Latin word ‘legitimare’ which means to make lawful. Oxford Dictionary has defined illegitimacy as, “(of a child) born of parents not lawfully married to each other”.
• When it comes to Muslim law, the basis of legitimacy of a child is direct or indirect proof of the existence of marriage between the father and the mother of the child.
• If there exists no direct proof, indirect proof shall suffice. And one of the ways for indirect proof is by the acknowledgment of legitimacy in favour of a son. This acknowledgment must not solely be of sonship, but has to be made in such a manner that it shows that the acknowledger’s intention is to accept the child as his legitimate son.
• The maintenance rights conferred upon illegitimate children to claim maintenance is uniform across all communities due Section 125 CrPC. If the child's parents' or the child's religion does not offer illegitimate children maintenance rights, the child can seek refuge in secular laws and not be concerned about a lack of financial support and fulfilment.
• While Muslim law recognises the legality of children born from valid or voidable marriages, it does not recognise the legitimacy of children born from void marriages or those born to parents who do not have a marital relationship, and hence does not grant them any inheritance or maintenance rights. Another restriction on the rights granted to illegitimate offspring is the ability to choose their religion. Due to the lack of secular laws, this limitation causes a concern in terms of inheritance rights, as one is bound by the principles outlined in personal law.

INTRODUCTION

In every society, whether a child is born out of wedlock or outside of marriage has a great impact on the child. Since earlier times, both have been viewed differently and their rights and liabilities also varied accordingly. A legitimate child born out of wedlock always has all the privileges while the illegitimate child faces a lot of discrimination and hardships.The society and laws treat them differently. To understand the concept of legitimacy, it is important to understand the meaning of the term first.

The word legitimacy originated from a Latin word ‘legitimare’ which means to make lawful. Oxford Dictionary defines illegitimacy as, “(of a child) born of parents not lawfully married to each other”. A child that is born out of premarital or extra-marital sexual relationships faces a lot of discomfort in the society, as they are considered as offensive relationships or sin in personal laws. Most religions do not recognise such relationships.

The process of recognizing a child to be legitimate is called legitimization. For example, the subsequent marriage of the parents of the child and recognition by the man. In India, both Hindu and Muslim laws do not recognize the concept of legitimization but the concept of legitimacy however, some foreign laws recognise the concept of legitimization such as the Portuguese law in Goa, The Legitimacy Act, 1926 of England, etc.

When it comes to Muslim law, the basis of legitimacy is the paternity of a child and that depends upon the marriage, thus, the basis of legitimacy of a child is direct or indirect proof of the existence of marriage between the father and the mother of the child. When a direct proof of the existence of marriage which is lawful does not exist, it can be established by the following:

• Acknowledgement of wife by a man;
• When a man acknowledges that he is the father of the child;
• Long period of cohabitation between man and woman

The identity of parents is exclusively established with the real father and mother of a child, and only if they beget the child in a lawful matrimony. Muslim Law is of the belief that an illegitimate child is a child of nobody. In Hanafi law, parentage is established in every case by the mother but in Shiite Law, it is established only if the child takes birth in lawful wedlock, which means that an illegitimate child will not belong to either of the parents. They (Sunnis or Hanafis) believe that an illegitimate kid belongs to the mother for some reasons, such as feeding and nourishment. The Hanafi Law grants the mother considerable rights in this regard.

A son is only legitimate under Muslim law if the offspring is born to a man and his wife or a man and his respective slave; any other offspring is considered illegitimate.

In Muslim law, a son is legitimate only in a situation when the offspring is begot by a man and his wife or a man and his respective slave; any other offspring is known as ‘Zina,’ which means a secret connection, and hence is not legitimate. The term 'wife' fundamentally signifies marriage, however marriage can take place without a ceremony, so the presence of marriage in any given circumstance may be debatable. Direct proof is required to establish the validity of a marriage; but, if direct proof is unavailable, indirect proof will suffice. The recognition of legitimacy in favour of a son is currently one of the techniques for indirect proof. This acknowledgement must be done in such a way that it reveals the acknowledger's determination to accept the child as his genuine son, not just of sonship.

SIMILARITIES UNDER HINDU AND MUSLIM LAW

1. Both laws consider an illegitimate child to be a filius nullius illegitimate.
2. Acknowledgement as a son would mean acknowledgment as a legitimate son under both laws.
3. The illegitimate child does not have the right to inherit the property of the putative father.
4. An illegitimate child is not included under the definitions of a 'child' or a 'descendant' under both the laws.
5. Legitimacy is acknowledged only with relations arising out of a lawful wedlock.
6. It appears that neither law imposes any obligation on either parent to support illegitimate children.
7. However, under both laws, parents are required to care for their illegitimate child according to the country’s laws. This responsibility, however, is confined to taking care of their illicit child but not the successors of the child under Section 125 of the Criminal Procedure Court.

RIGHTS OF CHILDREN

GUARDIANSHIP

In Muslim Law, illegitimate children do not have a natural guardian because they are considered to be children belonging to no one, and the biological father is not automatically considered the natural guardian of the illegitimate child. The mother of an illegitimate kid is regarded the child's natural guardian by the Hanafi sect until the child reaches the age of five years. In the case of Gohar Begam v. Suggi (1960), the SC India held that in Muslim law, the mother (appellant) is entitled to custody of a minor illegitimate daughter regardless of who the father is, and that the putative father has no legal right to custody of the minor child.

MAINTENANCE

Muslim law, usually, confers no obligation of maintenance of illegitimate children on either parent. "An agreement to retain an illegitimate child, for whom the Mohammedan Law as such offers no provision, does not have the effect of defeating the provisions of any law," the court held in Sukha v. Ninni (1965). In fact, in our country, under Section 125 of the Criminal Procedure Code of 1973, the maintenance of illegitimate children is statutorily recognised, and it is in accordance 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 vagrancy and its attendant social consequences."

INHERITANCE

Illegitimate children's rights are not recognised under Muslim law, and as a result, they have no right to inherit their parents' property or the property of their parents' relatives. An illegitimate kid is not entitled to inherit property from either of his parents among members of the Shia and Sunni religions, however an illegitimate child is entitled to inherit property from his or her mother under Hanafi law. Furthermore, children born from an irregular marriage are regarded legitimate offspring with rights to their parents' property, whereas children born from void marriages are deemed illegitimate children with no right to inherit their parents' property, unless their parents are Hanafi Muslims which would confer upon the child rights in his mother’s property.

The Hindu Law however, grants inheritance rights to children born out of void marriages and recognises them as legitimate under Section 16 of the Hindu Marriage Act,1955.

CASE LAWS

Muhammad Azmat v. Lalli Begum (1881)

It had been decided in several cases that there need not be proof of an express acknowledgement, but an acknowledgement of children by a Mahomedan as his sons may be inferred from his having openly treated them as such.

Mohammed Ismail Khan vs. Mohammed Allahdad Khan (1887)

When marriage cannot be proven by direct evidence and legitimacy cannot be established, Justice Mehmood found that Muslim law offers a method for establishing marriage and legitimacy as a matter of substantive law, which is paternity recognition.

Under Muslim law, acknowledgment is a norm of substance rather than a rule of proof. It indicates that under the Evidence Act, there is no presumption. It bestows the status of sonship as well as the right to succeed. A child whose illegitimacy is established because the parents' relationship was not legal; such a child cannot be established by recognition.

Habibur Rahman v. Altaf Ali (1921)

The object of a Muslim marriage is to legalise intercourse to bear children. It was observed in this case that legitimacy is recognised of a son if he is born of a man and his wife and otherwise the offspring is considered from an illicit relationship. The term wife essentially signifies marriage but maybe one excluding any ceremonies and an indirect proof will also suffice in the absence of direct proof.

CONCLUSION

The rights conferred upon illegitimate children are limited and the limited nature of these rights is quite discriminatory. Illegitimate children suffer as a result of their parents' decisions, as well as for factors beyond their control. Furthermore, society adds to the pain of these children by stigmatising and deliberately discriminating against them in terms of social acceptance and interactions, since it is harsh and unconcerned about their well-being. Because the law is inequitable, it adds to the anguish of these children by denying them access to a number of rights that are freely granted to their rightful equivalents. Because India is a religiously diverse country, it must take into account the religious sensibilities of all citizens, and as a result, the law governing the rights of illegitimate children reflects this, and is mostly skewed in favour of safeguarding the rights of legitimate children. However, India hasn’t already eradicated any form of discrimination faced by illegitimate children, if compared to several other foreign jurisdictions.

Because there are no secular laws, one is bound by personal law standards when it comes to inheritance rights. It is a time-consuming process to determine a child's or parents' religion or domicile, and various, often unfair considerations must be taken into account. It is often impossible to assign a certain religion to a child since the child may have been reared as an atheist, or may have been born to atheist parents, or may have been born to parents of diverse religions. In such a situation, it is difficult for the child to obtain an adequate and legal remedy because the very essence and root of the child's rights is codified religious personal law, which is difficult to gauge in and of itself.

Another blatant disparity in the rights of illegitimate children is the unrestricted financial burden placed on their mothers. Two people are equally responsible for the birth of a kid, and they are both equally responsible for the child's welfare and upbringing. However, in most religions, and even in Indian law, the mother of the child bears an unjust and unilateral burden, particularly in terms of inheritance and guardianship rights given on illegitimate offspring. Illegitimate offspring, for example, have no rights under Muslim law. A person cannot be punished for a crime that he or she did not commit. The Legislature has been mostly unconcerned in this matter, which requires prompt attention and appropriate legislation to correct the legal inconsistencies. It is difficult to overstate how ironic it is that legislative reforms have resulted in more anomalies and uncertainty than improvements in the status of illegitimate children.