Il(legitimacy) in India
By Aagam Jain, a 3rd Year, B.A., LL.B. (Hons.) student at National Law School of India University
Various personal laws establish the inheritance rights of a child in India. Despite there being a systematic exclusion of an illegitimate child’s right of inheritance, the personal laws provide almost no right of inheritance to an illegitimate child. In this article, I would argue that the laws governing the validation of rights of an illegitimate child are archaic and need to take a more liberal approach. The first part of the article discusses how the legitimacy of a child is determined by the law and the fallacies in the presumption of legitimacy provided under Sec. 112 of the Indian Evidence Act, 1872. The article also analyses the various personal laws of inheritance and the court’s reasoning in various cases to analyse the rights of inheritance of an illegitimate child.
Different personal laws have a different conception of an 'illegitimate child. In traditional Hindu law, ‘Aurasa’ has been defined in the Shastras as a child who is conceived as well as born during wedlock. This conception of legitimacy warranted that the parents conceive a child only after marriage. However, the privy council in Pedda Amani v. Zamindar of Marungapuri held that if a child is conceived during wedlock but born during a valid marriage, the child would be legitimate. This position of law continues to hold good. Muslim law lays down a gestation period of 6 months to determine the legitimacy of a child. If the child is born after 6 months of the marriage of the couple, the child is presumed to be legitimate.
Sec. 112 of the Indian Evidence Act, 1872 presumes that a child is legitimate if the child is born during the continuance of a valid marriage or if the child is born within 280 days after the dissolution of marriage, provided the mother remain unmarried. Since this law is secular, it applies to all personal laws and supersedes them. However, this is 1872 legislation that could be argued to be archaic in its approach. The principal reason for the presumption of legitimacy in 1872 was because there was no means of ascertaining paternity. However, various methods of ascertaining paternity have been discovered since then. The law must not make an adverse presumption that may function against the rights of the child. The words used in the section 'conclusive proof' ascribe a higher standard of proof than a mere balance of probabilities.
Modern techniques such as surrogacy or in-vitro fertilization might yield absurd results in cases of sec. 112. For instance, if A is a surrogate for B’s child, the child would be the legitimate son of A’s husband who is nowhere involved. Another fallacy in this section is the requirement of non-access to dispute the legitimacy of a child. In case the child is born out of adultery, the husband of the mother might not be able to dispute the legitimacy of the child because there is no issue of non-access. This would result in an increased burden for the husband of the mother while the biological parent of the child would not be held responsible for the child. Although this presumption would discourage the branding of a child as a ‘bastard’, the biological father would not be held responsible at all.
The law commission of India in its 185th report had taken cognizance of this issue and provided a revised section to allow for DNA testing in certain cases. The revised section as mentioned in the law commission report takes into consideration the need to conduct medical tests to establish legitimacy. The proposed section emphasizes that the consent of a woman is necessary to conduct a paternity test. This clause is important to maintain the right of the dignity of a woman. The section also adds a clause that establishes adverse inference in case a man refuses to undergo paternity tests. This presumption would be beneficial to protect the rights of a child in case a man refuses to take responsibility and oppose medical tests determining paternity. The lacunae in sec. 112 make it inequitable legislation in the current time.
Inheritance rights of an Illegitimate Child
The inheritance rights of a legitimate and an illegitimate child operate differently under various personal laws. While a legitimate child is generally entitled to inherit the property, an illegitimate child only has a limited interest/share in the property. Under Hindu law, a child born out of void or voidable marriages even though considered legitimate has a right only over their parent's property. An illegitimate child in Hindu law does not have a right even on the father’s property. A similar position of law is observed for other personal laws as well. Under Sunni law, the illegitimate child can inherit from the mother. Under Shia law, the illegitimate child cannot inherit from either parent. The courts have interpreted sec. 37 of the Indian Succession Act, 1925 to not provide any inheritance rights to the illegitimate child in the case of Christians and Jews. This kind of distinction is detrimental to the rights of a child because they have to bear the burden of these archaic laws. Though the laws have not been flexible enough to accommodate and take cognizance of the rights of an illegitimate child, the courts have arguably taken a progressive approach to these rights.
In the case of Revanasiddappa v. Mallikarjun, the Supreme Court held that the illegitimate child has a right over the self-acquired as well as the ancestral property of the parents. The Supreme Court reasoned that sec. 16, HMA, 1955 declared that the children born out of the void and voidable marriages as legitimate. The right of a child in the property should reflect this legitimacy and they should have a right in both, the ancestral and self-acquired property of the parents. The court also mentioned that with changing norms of legitimacy in the society, the law cannot afford to remain stagnant. In Muslim law or Christian law, however, the courts have had to take a strict interpretation of the law and thus the rights of an illegitimate child were excluded in such cases. Though the courts have held that the rights of an illegitimate child need to be upheld in cases of inheritance, the court could not go beyond the law to provide them relief. The court in the case of Jane Antony v. Siyath observed that children have no role in their birth and the marital status of their parents. Thus, a child should not suffer for the follies of their parents. Thus, it was recommended that legislation akin to Sec. 125, CrPC, 1973 (which provides maintenance rights to illegitimate children) be enacted by the parliament. The exclusion of an illegitimate child in inheritance unfairly advantages the biological father of such a child.
To provide legitimacy to children born out of wedlock, the Supreme Court has also provided legitimacy to children born to parents cohabiting for a long time. A crucial condition affecting the legitimacy of a child is the period of cohabitation between the parents. In the case of a 'walk in and walk out relationship’, the child would not be considered legitimate. Thus, it could be argued that the courts have been cognizant of the problem that could arise by labelling a child as 'illegitimate and they have tried to tackle the situation by taking a prudential approach while interpreting the law’.
The inheritance rights of illegitimate children do not have statutory protection. There exists no secular law that safeguards the rights of a child in their parents’ property. The 100th law commission report also identified this problem and recommended a revision in sec. 37 of the Indian succession act to include 'illegitimate children in the definition of 'child'. The law commission recommendations are over three decades old but no legislation has been passed to that effect till now. While the courts have recognised the lacunae in the law, there could be no improvement in the rights of a child till the law is amended to this effect.
In this article, I have analysed how personal laws have failed to recognise the rights of an illegitimate child. Although some laws were enacted to improve the status of illegitimate children, the laws need to develop to achieve these objectives. In the first part, I argued how Sec. 112, IEA, 1972 needs to be amended with the changing societal norms and modernisation. The law on presumption of legitimacy, though enacted to protect a child from 'bastardization' by society, might act today as a defence for people indisposed to take the responsibility of a child. Although the courts have tried to take a more liberal approach towards the rights of a child, they are bound by law and cannot go against the word of the law. There needs to be a secular law that safeguards the interests of a child and provide them with rights such as inheritance.
 Tahir Mahmood, ‘Presumption of legitimacy under the evidence act’  Journal of the Indian Law Institute 80.  (1874) I.A. 282,293.  Gautam Banerjee, Child and the law (Notion press 2017) 130.  Ibid.  Mahmood (n 1).  Vijay Pal Khanagwal, ‘Legal aspects of legitimacy in Indian perspective’  Journal of Punjab Academy of forensic medicine.  Caesar Roy, ‘Presumption as to legitimacy in section 112 of Indian Evidence Act...’  Journal of the Indian Law Institute 385.  Roy (n 9) 399.  Roy (n 9) 390.  Khanagwal (n 8).  Roy (n 9) 393.  Law Commission of India, 185th Report on Review of the Indian Evidence Act, 1872 (February 1985) Part IV.  Gupta (n 14).  Law Commission of India (n 15).  Gautam Banerjee, Child and the law (Notion press 2017) 138.  Sec. 16(3), Hindu Marriage Act, 1955.  Banerjee (n 18).  AA Fyzee, Outlines of Muhammadan Law (1974) 396.  Banerjee (n 18) 139.  Kusum, ‘Rights and Status of Illegitimate Children’  Indian Law Institute 302.  Jane Antony v. Siyath (2011) 11 SCC 1.  (2011) 11 SCC 1 .  (2011) 11 SCC 1   Re: Sarah Ezra v Unknown AIR 1931 Cal 560; Pavitri v Katheesumma, AIR 1959 Ker. 319.  2008 (4) KLT 1002.  2008 (4) KLT 1002 .  2008 (4) KLT 1002 .  SPS Balasubramanyam v. Sruttayan AIR 1992 SC 756.  Madan Mohan Singh v Rajni Kant (2010) 9 SCC 209.  Law Commission of India, 110th Report on The Indian Succession Act, 1925 (February 1985) 59.
(Disclaimer- The views expressed in this article are those of the author and do not necessarily reflect the views or policies of the Child Rights Centre.)