Comprehensive Essay on the Illegitimate Children under Hindu Law

C. Joint Family Property and Partition

D. Guardianship

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A. Maintenance:

Prior to the coming into force of the Hindu Adoptions and Maintenance Act, 1956, an illegitimate son of a Hindu was entitled to maintenance out of his father’s coparcenary property and his self­acquired property. The father was bound to maintain his illegitimate son during the period of his minority, irrespective of the fact whether he had any property or not.

Among the Shudras, illegitimate sons were entitled to maintenance if they could not inherit or get a share on partition. If, however, the mother was not a Hindu, this right could not be enforced under the Hindu law. The illegitimate son could, in that case, proceed against the putative father under the Code of Criminal Procedure.

Illegitimate daughters had formerly no remedy under Hindu law. They were, however, entitled to maintenance under the Code of Criminal Procedure, which right was enforceable only during the life­time of the putative father and terminated on his death.

Now, under the Hindu Adoptions and Maintenance Act, 1956, a Hindu is bound, during his or her life-time, to maintain his or her illegitimate children. The obligation to maintain illegitimate children is now upon both, the father as well as the mother. Not only the illegitimate son, but also an illegitimate daughter, is entitled to be maintained by her father and mother.

The right to be maintained, however, extends only upto the period of minority. An illegitimate child is not entitled to be maintained by his or her parents after attaining majority. Such a child will also not be entitled to be maintained if he or she has ceased to be a Hindu by conversion to another religion.

Moreover, under the Hindu Adoptions and Maintenance Act, an illegitimate son of a deceased Hindu, so long as he is a minor, and an illegitimate daughter of a deceased Hindu, so long as she remains unmarried, are entitled to be maintained by the heirs of the deceased out of the estate inherited by them or by the persons who take the estate of the deceased. Such a son or daughter, however, will not be entitled to maintenance under the said Act if he or she has ceased to be a Hindu by conversion to another religion.

An illegitimate child who has ceased to be a Hindu can, however, apply for maintenance from his or her father under the Code of Criminal Procedure.

B. Inheritance:

An illegitimate child is not entitled to succeed to his father. But under the Hindu Succession Act, illegitimate children are deemed to be related by illegitimate kinship to their mother and to one another, and their legitimate descendants are deemed to be related by legitimate kinship to them and one another, and can therefore inherit from each other under the said Act. An illegitimate child can inherit the property of his or her mother or of his or her illegitimate brother or sister. A mother also can inherit the property of her illegitimate child. The father has no right to inherit the property of his illegitimate child.

After the passing of the Hindu Succession Act, 1956, an illegitimate child of a Shudra cannot inherit the property of his or her father. Formerly, an illegitimate son of a Shudra if he was a dasiputra, was entitled to succeed to his father. Now, under the Act, he cannot.

C. Joint Family Property and Partition:

Unlike a legitimate son, an illegitimate son does not acquire any interest in the ancestral property in the hands of his father; nor does he form a coparcenary with him, so that during the life-time of his father, the right of the illegitimate son is only limited to maintenance. But the father may, in his lifetime, give him a share of his property, which may be a share equal to that of the legitimate sons.

Prior to the passing of the Hindu Succession Act, on the death of his father, an illegitimate son succeeded to his estate as a coparcener with the legitimate son of his father, and was entitled to enforce a partition against the legitimate son. Now, under the said Act, however, he cannot succeed his father, as he is not related to him by legitimate kinship.

D. Guardianship:

A mother had a preferential right of guardianship. The father had no right to the custody of the illegitimate son during the letter’s minority, and ordinarily, the mother of an illegitimate child had the right to the custody of the child during the years of nurture.

Now, if both the parents of an illegitimate child are Hindus, Buddhists, Jains or Sikhs by religion, or if one of the parents of such child is a Hindu, Buddhist, Jain or Sikh by religion, and such child is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged, then the Hindu Minority and Guardianship Act, 1956, applies to such a child, and under section 6 of the Act, in the case of an illegitimate boy or illegitimate unmarried girl, the mother is the natural guardian, and after her, the father is the natural guardian, and in the case of a married girl, the husband is the natural guardian. But under that Act, such a guardian is not entitled to act as such, if he or she had ceased to be Hindu or has completely and finally renounced the world by becoming a hermit or an ascetic.