Illegitimate One’s Claim Over the Property: Valid or Not?


By Tashmayee Sarkhel

Published at: 04th August 2022 at 20:23 IST

This article includes the laws and applications regarding the rights entitled to illegitimate children, and under law what is their stand for them and how they can be defined.

The Hindu Marriage Act, 1955[1]‘s Section 16 (3)[2] governs the inheritance rights of illegitimate children, stating that “such children are exclusively entitled to the property of their parents and not of any other connection.” The implication is that an illegitimate child would only be entitled to his father’s self-acquired property, not his paternal property.

A Supreme Court decision from 2011 states that, instead of his ancestors’ property, children born outside of marriage have the right to claim their father’s self-acquired property. But to a Supreme Court decision from 2011, children born outside of marriage have the right to claim both their father’s property and his family’s ancestral property. The legitimacy of illegitimate children’s claims to ancestral property has been unclear despite this judgment.

The word “illegitimacy” comes from a Latin adage that translates to “not by the law.” A child that is born outside of marriage has an “illegitimate” status because of the marital status of his or her parents and is consequently seen as being nullius filius, or having no legal link with either of them. The parents’ marital status and their relationship’s legal standing are the two variables that determine legitimacy.

Illegitimate children and their rights:

Over the years, ‘illegitimate’ children’s rights have undergone tremendous change. An illegitimate child received maintenance rights and essentially no inheritance rights in medieval Europe, Britain, and America. However, since the 20th century, several nations have changed their laws to ensure that illegitimate children receive the same treatment as legal children and are not subjected to discrimination for no reason at all. Illegitimate children endured severe prejudice in these countries before changes in the laws and social environment that changed the rights granted to them, and they still experience discrimination in the majority of societies and faiths around the world.

Although there is no moral or ethical justification for the discriminatory laws that apply to illegitimate children, the mistreatment and discrimination of illegitimate children have been linked to condemning and/or discouraging “promiscuity” and illicit relationships as well as to deterring people from “engaging in illicit relations” at the expense of their offspring experiencing discrimination.

Additionally, the fight to end prejudice against children born out of wedlock is reflected in international law and several international agreements, such as Article 25[3] of the Universal Declaration of Human Rights, which categorically states that all children, whether born out of wedlock or not, shall be afforded the same social protection.

The United Nations Convention on the Rights of the Child, 1989[4], states that no child shall be subjected to discrimination based on their race, color, sex, language, religion, political opinion, national, ethnic, or social origin, property, disability, birth, or another status and those children are protected from all forms of discrimination or punishment based on the status, activities, expressed opinions, or This only applies to state parties that have ratified the convention, though.

Illegitimacy and India:

In India, despite secular and neutral laws, the laws that govern family relationships including those between parents and children are mostly governed by personal laws and regulations. The laws that govern illegitimate children regarding property, inheritance rights, maintenance, guardianship, adoption, etc. vary greatly among various religions and groups.

For instance, illegitimate children who are born to Hindu parents or who have been raised as Hindus are given far greater inheritance rights about their parents’ property than illegitimate children who are born to Muslim parents or who have been raised as Muslims because the personal laws that govern Muslims do not have provisions for illegitimate children.

However, there are some impartial and secular laws, like Section 125[5] of the Code of Criminal Procedure (CrPC), that address the maintenance rights of wives, children (legitimate and illegitimate), and parents. These laws fill in the gaps left by personal laws and give all illegitimate children a legal remedy regarding maintenance, regardless of their parents’ religion, so in some cases, illegitimate children do not have to rely on their biological parents.

In India, legitimacy is acknowledged by several legal rules in addition to the most obvious one, which is birth. A child born during the continuation of a valid marriage or born 280 days after the marriage has been dissolved is regarded as a legitimate child as long as the mother hasn’t remarried. This presumption is void in the event of a DNA test.

It is important to remember that this presumption only applies to children who have been born from lawful marriages. There is no presumption of legitimacy in the case of a child born from an invalid or voidable marriage, and the kid’s legal status is determined by his or her laws or those of the parents.

  • Even though it only applied to children born from a void or voidable marriage, the 1976 modification to the Hindu Marriage Act, 1955 brought about significant changes to society. One such development was the recognition of the rights of illegitimate offspring. A child born from a void or voidable marriage was only regarded legal under Section 16 of the pre-amended act if the marriage between the kid’s parents was found to have some degree of nullity.

Furthermore, such a child would be regarded as a legitimate child in the same way as if the child’s parents’ marriage had been dissolved rather than annulled. Therefore, the child would be regarded as an illegitimate child and thus be denied several inheritance rights if the parents of the child did not get a declaration of nullity for their marriage. Since children shouldn’t be “bastardized” whether a nullity decision is issued or not, such a clause in social welfare legislation like the Hindu Marriage Act, 1955, was problematic. As a result, courts had to change the section to close the gaps in the law.

  • Illegitimate offspring are classified as filius nullius and are known as “Zina” or clandestine connections in Muslim law[6]. They also have no recognition, rights, or status in terms of inheritance, maintenance, guardianship, etc. Furthermore, the natural or presumed father of the child is under no obligation or burden in Muslim law.

But among Hanafis, an illegitimate child is accepted as a legal child of the mother, who is responsible for raising the child, while the father of the illegitimate child bears no responsibility whatsoever. Illegitimate children are not accorded any status, acknowledgment, or rights in the parents’ property in the Shia, Sunni, and Shite faiths. Furthermore, under Islamic law, illegitimate children cannot receive any status of legitimacy.

  • There are no defined religious or legal provisions in India that grant rights to illegitimate children born to Christian parents since an illegitimate kid is not accorded any status or recognition under Christian law[7]. The rights of illegitimate offspring are covered by the Indian Divorce Act, 1869 (“IDA”)[8]. Children born from a void or voidable marriages have sometimes been granted legitimacy in Christian Law under the IDA, similar to how children born from such marriages have been given a status of legitimacy in Hindu and Muslim law.

There are several reasons on which a decree of nullity might be requested to declare a marriage void. However, when it comes to the legitimacy of children born out of wedlock, only those children who are born out of wedlock that has been annulled because a former spouse is still alive and the subsequent marriage was arranged in good faith and with the belief that the former spouse is dead and based on insanity are considered to be legitimate children and are entitled to inherit their parent’s property.

It is important to note that children born from marriages that are declared null and void under Section 19[9] of the Indian Divorce Act, 1869 are regarded as illegitimate children. For Christians living or residing in India, such a distinction between children born from different forms of void marriages is surprising.

Illegitimacy and inheritance rights:

In most states, a parent can specify in their will whether or not their adult children would get any inheritance. However, if a parent passes away without leaving a will, state law determines whether the kids get anything. This determination may include evaluating a child’s validity.

In the past, legitimate children were granted significantly more legal privileges than illegitimate children. Illegitimate offspring used to be denied access to their parents’ estates by the law. In many cases, children born outside of marriage had no standing in society. For the child to be recognized as legitimate and to maintain the child’s inheritance rights, expectant parents frequently worried about getting married before the child was born. Normally, fathers might disinherit children who were not legitimate if they did not want to accept these children born out of wedlock.

By the 20th century, many jurisdictions had changed their legal systems to allow illegitimate children to inherit from one or both parents. Illegitimate children’s legal rights were still restricted by regulations in several states. According to the Equal Protection Clause of the federal Constitution, the United States Supreme Court found that state legislation that denied rights to illegitimate children purely because of their illegitimacy was unconstitutional. A state statute that denied a legitimate child the ability to inherit from her father unless a bequest was included in his will was overturned by the United States Supreme Court in a case from 1977.

Different states take different approaches when determining whether a child has the right to inherit from his or her father. Many states do not recognize an illegitimate child as the father’s legitimate offspring. However, there might be ways to prove the relationship legally, like permitting the child to provide proof of it. In several places, a kid may be entitled to an inheritance if the father officially acknowledged that he was the child’s father.

If the father later weds the kid’s mother or if paternity was established through a legal process, those are two additional circumstances in which the child may establish paternity and qualify for inheritance rights. For a child to be granted inheritance rights, paternity must often be proven during the father’s lifetime. Some states, however, let paternity be determined through DNA testing after the father has passed away.

Inheritance rights in India:

Compared to other rights they may have, including maintenance rights, illegitimate children’s succession, and inheritance rights in India are quite ambiguous. One of the reasons for this is that, unlike the remedy of maintenance provided under Section 125 CrPC, no secular or neutral legislation tackles the question of inheritance rights or succession; instead, all succession-related issues fall under the domain of private, religious laws.

Illegitimate children’s inheritance rights are not explicitly recognized by law. Illegitimate children are not recognized under the Indian Succession Act (ISA)[10], which only acknowledges their domicile. Additionally, the Hindu Succession Act, 1956[11] (“HSA”) only recognizes genuine kinship; as a result, illegitimate children are only considered to be linked to their mothers and are therefore eligible to inherit their mothers’ property under Section 14[12] of the HSA.

The Hindu Marriage Act, 1955, Section 16(3), states that children born out of the void or voidable marriages are only entitled to property belonging to their parents and not anyone else’s had they not been the legitimate children of their parents, codifies the inheritance rights of illegitimate children under Hindu personal law.

This provision has traditionally been taken to mean that illegitimate children have an inheritance claim over their parents’ self-acquired property, not their parents’ ancestral, co-parcenary, or HUF property. However, as further detailed below, the Supreme Court of India (“Supreme Court”) has currently construed the clause to encompass the ancestral property of the parents of the illegitimate child and is not just limited to the self-acquired property of their parents.

According to the Supreme Court, a kid born in such a connection is innocent and is entitled to all the same rights as children born in legally binding marriages. It is illogical for the children to not have any share in such property since such children are equated with legitimate children of a valid marriage. When an ancestral property is divided, the property falling in the share of the parents of such children is regarded as their self-acquired and absolute property. Illegitimate offspring are still able to exercise their claim to an ancestral home, but only after their parents pass away and not while they are still alive.

The courts have effectively examined and interpreted the inheritance rights of illegitimate offspring who later converted to another religion through a variety of case laws. Being an illegitimate child, if a Hindu converts to Islam or any other religion, he or she will still be entitled to his or her father’s intestate property because inheriting is a right conferred by birth, not a choice, and switching from one religion to another is a personal decision that cannot change any birth-based connections. Furthermore, the Hindu Succession Act of 1956’s Section 26[13] only affects the right of succession of children born to convert after conversion and does not prevent the convert from inheriting his parents’ property.

Illegitimate child of cohabiting couple to get assets share: Supreme Court – The Times Of India (June 14, 2022):

The Supreme Court has overturned a Kerala High Court decision and decided that illegitimate children of a couple who have lived together for a long period without being married are entitled to a portion of the family’s assets. The high court’s decision to reject an alleged illegitimate child’s request for a property split was challenged in the supreme court because the plaintiff’s parents had not legally wed.

But the top court ruled that because the couple had been cohabitating for a while, their relationship was on par with marriage. “It is widely established that there will be a presumption in favor of wedlock if a man and woman live together for many years as husband and wife. Under Section 114 of the Evidence Act, a presumption of this kind could be made. Although the assumption is rebuttable, the burden of proof falls heavily on the party seeking to deny the relationship’s legal origin “ it read.

Additionally, it stated that the Trial Court had determined after reviewing the admissible evidence that Damodaran and Chiruthakutty had been living together for a considerable amount of time. The plaintiffs claim that Damodaran wed Chiruthakutty in 1940. There isn’t any concrete proof that they were married, though. Krishnan, the first complainant, was born in 1942.

“The plaintiffs’ documents were already in existence when the dispute between the parties started. These records, along with other supporting evidence, would demonstrate Damodaran and Chiruthakutty’s extensive period of marital cohabitation “ the decision made by the bench of Justices S. Abdul Nazeer and Vikram Nath was stated in the order. The court also cited a previous ruling that stated: “Law leans in favor of legitimacy and frowns against the bastardy.”


Indian media outlets claimed in February 2019 that Raphael Samuel, 27, planned to sue his parents for giving birth to him against his will in Bombay, Maharashtra. For several unidentified reasons, the lawsuit has not moved further. Raphael Samuel wants to bring a lawsuit because Raphael Samuel believes that our consent can several numbers not be obtained before our birth and that since it was not our choice to be born, we should not be compensated for the rest of our life. Even though the fact that the argument is completely illogical, empty, and unsustainable from a legal standpoint, the corollary can be applied even while guaranteeing rights to all children regardless of the marital status of their parents.

Illegitimate children should be granted the same rights and liberties as those born to parents who are in a valid and legally recognized marriage. They should not be made to pay the price or bear the brunt of their parent’s decisions. While the legislation in India regarding the rights of illegitimate children is still in its infancy, a paradigm change is taking place to put illegitimate children on par with legal offspring in terms of their inheritance, maintenance, and guardianship rights, albeit at a glacial pace.

  1. The Hindu Marriage Act, 1955
  2. The Hindu Marriage Act, 1955, s. 16(3)
  3. The Universal Declaration of Human Rights, a.25
  4. The United Nations Convention on the Rights of the Child, 1989
  5. The Code of Criminal Procedure, s.125
  6. Muslim Law
  7. Christian Law
  8. The Indian Divorce Act, 1869
  9. The Indian Divorce Act, 1869, s. 19
  10. The Indian Succession Act, 1925
  11. The Hindu Succession Act, 1956
  12. The Hindu Succession Act, 1956, s.14
  13. The Hindu Succession Act, 1956, s.26

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