Custody Rights of an Illegitimate Child

I. Introduction

“There are no illegitimate children-only illegitimate parents”- Hence, Leon R. Yankwich

Keeping in mind the secularism in India, a few of traditional customs are often put into place to make sure all the diverse faith communities have fair standing. Family law deals with people who are underage and who are really the family's own, as well as those who are not. When it comes to an “illegitimate” child, Hindu law says the mother is the first natural guardian and the only exception is if she were to cease being a Hindu or renounce the world. In family law, child custody describes lawful guardianship over a minor child. The right to custody of their children is an important consideration for mothers who are exposed to domestic violence Often women put up with much ill treatment as a result of their fear of losing their baby, as a vicious cycle is maintained through fear of legal action.

Earlier the provisions of Hindu Minority and Guardianship Act (HMGA)prefer father as the natural guardian. This is prevalent in culture, with regard to families in general, where the children belong to the husband and his wife, but not to her relatives. Wives, on their departure from their matrimonial house, who are sometimes harassed, are unable to have custody of their baby, nor see them in the event that sometimes, are promised custody. But in the course of time, as a result of the women's revolution in our society, the legislation has also shifted and today the woman is seen as a primary caregiver of her child and partner's wellbeing.

In India, primarily the child custody cases are governed by the following acts and laws:

1. Guardians and Wards Act, 1890

2. Sectiontion 38 of Special Marriage Act,1958

3. Sectiontion 26 of Hindu Marriage Act,1955

4. Hindu Minority and Guardianship Act, 1956

5. Hindu Adoption and Maintenance Act, 1956

6. Custody under Muslim Personal Law (Shariat).

(A) Concept of Illegitimacy

The word “bastard” in mediaeval Wales denoted a “an illegitimate infant,” and “bastard” meant a “a child that is not recognised by its father.” Regardless of the sex of the infant, recognised or not, the parent has the same property rights when the child was born, it is essential that any child benefit from his estate when he dies. Wales was then became subject to English rule after England had conquered Wales.

In contrary to English practise, a bastard could not inherit real land. There was one exception: when his father later married his mother and then-secret illegitimate son inherited them, the property was given to the son. Our brother of less exalted birth (a brother who is not bard) will have no rights to the estate.²

The Legitimacy Act 1926 of England and Wales legitimised a babyhood if parents who had not already been committed to anyone else successfully tried to re-create their relationship. Though the parents could have already remarried (after the Legitimacy), it often legitimised subsequent “legitimate” partnerships made out-of-of-schedule relationships possible, as they were conducted with the children's full consent. Neither the Act of Succession of 1926 nor the throne succession act was ever touched by the British Parliament in passing. Under the intestacy rules, a child born out of wedlock was entitled to an estate. canonically, as well as in common law, and children from putative unions have been acknowledged as well.

The Courts in India determine if an infant is born in wedlock or illegitimate, according to whether the parents were together when the child was conceived or whether they were lawfully married when the child was born An illegitimate child is one that was born out of wedlock.

When the infant is born, it is an unwanted child if the father and mother are not married to each other.

(B) Research Methodology

The methods used in this research are secondary methods, which include articles, blogs, books and newspapers. Internet blog posts and articles are an essential part of the research. The conclusion drawn are carefully interpreted on the basis of collection of data from different secondary sources. The entire project is roughly based on different articles on the internet while making the idea clear. The research methodology adopted for the purpose of this project is the doctrinal method of research. For the purpose of this project even bare acts have been referred for relevant case laws.

(C) Research Questions

1. What is defined by the term ‘illegitimacy”?

2. What are the custody rights of an illegitimate child in India?

3. Who can take custody of illegitimate child in India?

4. What laws govern the various rights of illegitimate children in India?

II. History

Family law in India is primarily enforced and administered by civil and statutory codes. The rules for illegitimate children with regards to land, succession, maintenance, guardianship, and adoption are drastically different than those for those in the community are almost as varied, if not more. An illegitimate child, however, receives greater inheritance than an illegitimate one who is raised in the faith, as a personal laws that governs Muslims has provisions for it does not specify illegitimate children. Although personal laws like those concerning wives, children, and parents have fallen by the wayside, the non-religious code sections of the CrPc, like Section 125, 1973, also fill the void and provide an appropriate legal remedy for all illegitimate children, whether they are born to parents of one religion or another.

Prior to the Hindu Codes and Hindu Personal Laws being drafted and enacted, citizens and cultures had previously ruled themselves, according to their customary and traditional rules. Thus, the law of succession was based on past practise only. Hindu women were not permitted to hold and purchase property apart from their “stridhan”, and if any immovable property devolves upon a Hindu woman, she only has life interest in the property and cannot alienate it according to her wishes. Additionally, infants conceived outside of wedlock had no property rights of succession or support, and were considered outlaws. Additionally, the introduction of the Hindu Code Bill of Rights simplified and formalised the existing legal framework for the religion and provided limited benefits to underage children. The authority of children born outside of wedlock has since increased by revisions and precedents.

Mother’s Rights under Hindu Law

If you are a Hindu, then you would be governed by the Hindu Minority and Guardianship Act, 195 and these are the enactments applicable to a mother who belongs to Hindu, Buddhist, Sikh or Jain by religion. Children under the age of five are typically assumed to be with their mothers. Section 6(a) of Hindu Minority and Guardianship Act, in India deemed the age limit to be five years old and under Section 19(b) of Guardians and Wards Act the limit was eighteen years old.³ The Guardianship and Wards Act was modified to ensure that mother and father had equitable custody access to their children in the event of a power of attorney. It was also rendered very clear in the case of Roxann Sharma v. Arun Sharma⁴ that any stipulations of the law do not apply to an infant after the age of five years. In other words, child custody would be dependent on the child's needs. If the kid is over the age of nine, the decision is theirs. Custody would not be offered to the mother if it is proved that she has abused or neglected the boy.

Mother’s Rights in the Custody (Hizanat) of Children under Muslim Law

In Muslim society, the offspring of unlawful unions are not recognised nor cared for, and are regarded as “bastards” or illicit relationships. Finally, the natural or presumed parent of the infant has no burden or liability under Mohammadan law. Hanafi Islamic law views, however, recognises a child as an approved child of the mother who is required to support the child in accordance with Islamic law.⁵ Although the parent of the infant is absolutely cleared of all charges for the crime In the Shia, Sunni, and Ismaili families, there are no place for illegitimate children. Similarly, there is no legitimization mechanism for illegitimate children in Muslim rule.

Children born from valid and invalid and voidable marriages in the Hindu and Muslim rule are treated in the same way. Because Muslim law distinguishes between three different forms of marriage, it's legitimate (sah), invalid (faiz) and void (faiz) (batil). An agreement with a Muslim, pagan, or an objector to marriage is an irregular union (fasiq), but a void marriage is one the one where one of the parties refuses to go along with the marriage procedure. However, in order for a proposal to be legal, all partners must choose to get married, and it must be made and accepted in a single meeting. Legitimate children are those produced by an illegal or legal marriages; nevertheless, void and illegitimate children have no privileges to inheritance or guardianship or registration under Islamic rule.⁶

The foundation of custodianship is the child's well-being. Preference is provided to the mother with dependent children in The Muslim law of Hizanat. If the mother is not alive or is not capable, custody of a boy under 7 and a girl who is already in her teens is provided to other females in the immediate family members.

(C) Custody under Christian Law

Because of India's Christian status, an illegitimate infant would not have any citizenship, even if born to Christian parents. Legitimate children have protections that are more certain in the Indian Divorce Act, 1869. Children born out of invalid and void partnerships have been given a legal standing similar statuses in Hindu and Muslim law. Reasons to nullify a marriage have been discovered for seeking a nullity include, but are not limited to: However, for the purposes of legitimacy of a person's offspring, only those born to parents who were wed when one of them died, or when one of them believed the other to be dead, and the subsequent marriage was held to be non-binding are considered and thus have the right to inherit property. In the interest of accuracy, it must be mentioned that the children born in a common-law marriage (whose parents subsequently divorced) are described as 'illegitinerate' under Section 19 of the Indian Divorce Act, 1869. For Christians who are domiciled in India, it is a new approach to look at the difference.⁷

III. Rights of an illegitimate child

Maintenance

Hindu Adoptions and Maintenance Act, 1956, requires those under its purview to financially support their underage children before they are able to do so themselves. It is now the responsibility of both parents to support their illegitimate offspring. An illegitimate son has as well as an illegitimate daughter a right to support from his parents. The right to be protected as a minority, however, stops at that stage. When a child ceases to be dependent on his or her parents for financial support, the child is no longer entitled to his or her parents' resources. Such a child cannot be considered a member of the religion even though he or she has converted to another faith.

Moreover, an underage son or daughter of a Hindu parents, up to the age of majority, may also receive maintenance and support from the family of the deceased. However, whether he or she converts to that faith, a child would not be entitled to maintenance under the law. The offspring of a Hindu woman who has renounced the religion of Hinduism is able to receive maintenance from the father under the Code of Criminal Procedure, but only if the mother was no longer married to the man at the time of birth.

Inheritance

Once the Hindu Succession was in force, (passed in 1956), an illegitimate son or daughter was disallowed from inheriting the property of his or her father or mother, regardless of the caste. A man born out of a Shudra, even though it was through an unorthodox method, was entitled to become the successor of his parent. as a result of the Act, he is not able to.

• Joint Family Property and Partition:

Prior to the passage of the Hindu Succession, an illegitimate son inherited his father's property and proceeded to enact a division of it when the rightful son died. Thus, as he will not replace his father as a third cousin once removed, by the rules of kinship he is not qualified to succeed him.

Guardianship

Mother's place is known to be in the care of raising the child. Now, if the parents of an illegitimate child are both Hindus, if the Act of 1956 applies, and in that case because under section 6, it's said the father is followed by the husband if the father and husband aren't both the mother. In the case of an unmarried girl, father takes precedence. If an illegitimate boy is brought up in a community or a Sikh girl was married and brought up in her husband's tribe, he's the father; as with a married girl, husband comes before father.

A guardian who has either adopted a faith other than Hinduism or has stopped believing in that faith is not a qualified guardian under the Hindu Succession Act.

IV. Judiciary on illegitimacy

The court has given some landmark judgements in the field of illegitimacy. Some of such decisions are:

The Supreme Court of India in Revanasiddappa v. Mallikarjun⁸ opined that the Preamble of our Constitution emphasises equality of rank and opportunity and human dignity. When the parents cannot terminate their partnership, the relationship of the child to them must be considered.⁹ The same protection should be accorded to all people, whether they are born into or not in lawful wedlock.

In Jinia Keotin v. Kumar Sitaram Manjhi¹⁰ the Supreme Court has said that Within conventional rule, an infant has to be born to legal parents. Where a marriage was in contravention to constitutional prescriptions, the children are born illegitimate. Whether not proclaimed or annulled, the children will, by their very nature, be bastards.

In Kamulammal (deceased) represented by Kattari Nagaya Kamarajendra Ramasami Pandiya Naicker v. T.B.K. Visvanathaswami Naicker (deceased) & Ors¹¹, the Privy Council decided that a Sudra man who died leaving behind him an illegitimate son, a daughter, and a daughter from a concubinage, as well as his consorts, will have the same inheritance. Because of that, an illegitimate son will receive one-half the inheritance. The illegitimate children of a Sudra, in accordance with the law, are therefore eligible to inherit a portion of his wealth, regardless of their parentage.

In Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh & Anr¹², This is known because the king was a sudra, who left behind three widows and an illegitimate son. In the absence of a legitimate son, the question was whether an illegitimate son might take his place. When the boy prince's father died, the Privy Council declared him to be the rightful heir because of the child's continued existence.

In Thrumurthi Ranayammal v. Thrumurthi Muthamal, the Madras High Court held that the language of Section 16 of the Hindu Marriage Act contributes to an undesirable, unusual, and untoward position which could not have been anticipated by the legislature." Obviously, a child born into a null union is just as legitimate and has as much legal standing as a child born to unmarried parents.

In Shanta Ram v. Smt. Dargubai, the Bombay High Courtobserved that any children born to a void marriage would be considered legal, whether or not they still acquired the right to succession, when ruling on a petition challenging the marriage.

The Hon’ble Kerala High Court observed in the case of Jane Antony v. Siyath¹³, that there does not exist any rational basis in denying a right of succession to illegitimate children in their parents' property when there is a secular legal provision like Section 125C of the Code of Criminal Procedure which treats all children fairly. Since children are born into their parents' and live under their parents' care, the burden is on their parents to take care of them before they mature. Furthermore, the court suggested that the government introduce provisions equivalent to that of Section 125 of the Code of Criminal Procedure, 1978, or new legislation that recognises all underage children regardless of their faith background. Thus, forthwith, the One Hundred and Tenth Report of the Law Commission, issued in February of 1985, proposed that the word "baby" should involve an illegitimate child as well as the one who is conceived in the husband's own rape, as it is not done currently Moreover, the study further proposed that a provision of Section 37 concerning inheritance rights could provide the right of illegitimate children to an equal share of land. This resulted in a bill to cover adoptive and non-but-biological infants being under “child”, which subsequently became law. but the Bill was not implemented and those required revisions have not been made yet

V. Conclusion

According to the United Nations' Convention on the Rights of the Fetus, the best interests of the child is the starting point of Indian domestic law. Acknowledged in the UN Convention on the Interests of the Child when deciding on the custodial rights of the baby. The custody orders are interdependent. Whether the girl is content with her new custody arrangements, she will not be separated from her offspring. Even if the whole panchayat (guru) and anyone in the locality insist on it, it would be impossible to compel the mother to give up custody of her boy. Under no obligation to comply with either child care or protection order, a survivor under state domestic violence law should instead takes the matter to the relevant courts.

There has to be equal access of property rights to all illegitimate and legitimate heirs, and this has to be done by secular/law instead of religion. Legitimate children have the right to do so under new legislation; non-legitimate ones may elect the right to equal inheritance via neutral legislation. And those who have been deprived of both parents should be given natural guardians. It is also argued that those laws which single out the mother whilst absolving the father of all liability for family bylaw must be invalidated and those that impose an extra strain on her must be struck down to provide for unwanted children who are vulnerable to family. Legislative changes would aim to reduce the unfairness experienced by unauthorised minors, to delay the process of injustice, and halt it where it occurs.

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VI. References

Websites

1. http://lawcommissionofindia.nic.in/reports/Report%20No.257%20Custody%20Laws.pdf

2. https://blog.ipleaders.in/guardianship-of-illegitimate-children-in-india/

Articles

1. Aqil Ahmad, Mohammedan Law227 (15 ed. Academic books Publishers, 1992).

2. AmbikaPandit, CARA: Adopted child has rights equal to a biological child, cannot be denied any benefit under law, Times of India

3. Tabassum Jahan, Custody of Children Under Different Legal Systems: A Comparative Study, Department of Law Aligarh Muslim University (2013)

4. M.Hidayatullah, Principles of Mohammedan Law(1993).

Cases

1. Geetha Hariharan v Reserve Bank of India

2. 2Roxann Sharma v. Arun Sharma

3. Revanasiddappa v. Mallikarjun

4. Jinia Keotin v. Kumar Sitaram Manjhi

5. Kamulammal (deceased) represented by Kattari Nagaya Kamarajendra Ramasami

Pandiya Naicker v. T.B.K. Visvanathaswami Naicker (deceased) & Ors

6. Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh & Anr

7. Thrumurthi Ranayammal v. Thrumurthi Muthamal

8. Shanta Ram v. Smt. Dargubai

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