The Hindu Marriage Act, 1955 governs the marriages solemnized between

Hindus and is also applicable to Sikhs, Jains, and Buddhists. The Hindu
Marriage Act defines marriage and lays down the cohabiting rights for the
persons governed by this Act. The Hindu Marriage Act further protects the
rights of the children born falling within the purview of the said Act. It also
deals with void (A marriage which is invalid at the very inception) and
voidable marriage (A marriage which can be annulled or avoided at the
option of either party).

Illegitimate Child
Children born from void or voidable marriages are considered to be
illegitimate children. The Hindu Marriage Act also chalks out the rights and
entitlement of such children in the properties of their parents.

Right of Illegitimate Children

Apart from the Hindu Marriage Act, the right of a child qua the properties of
the parents, maintenance is governed by:

 Hindu Succession Act, 1956.

 Indian Succession Act, 1925.
 Hindu Adoption and Maintenance Act, 1956.
 The Code of Criminal Procedure, 1973.

Rights Of Illegitimate Children Under the Hindu Marriage Act,

1955
As per the Hindu Marriage Act, an illegitimate child can claim rights from:

a. Mother’s property.
b. Father’s property in case the biological father is identified.
The Hon’ble Courts have held that an illegitimate child must be treated at
par with the legitimate child for claiming rights in the property of parents.

The Hon’ble Apex Court has further stated that an illegitimate child (born of
a void or voidable marriage) can inherit their parent’s share of inheritance
in a joint Hindu family property, as governed by the Mitakshara
Law. However, an illegitimate child does not have coparcenary rights. It has
been stated that such a child is not entitled to the rights to the property of
another individual in the family.

The Hon’ble Supreme Court even suggested how the exact share of
illegitimate child’s parent in the ancestral property can be ascertained. It
can be ascertained by conducting a “notional partition” of the ancestral
property, i.e., calculating the amount of property the parent would receive
immediately before death.

In order to ascertain the interest of a deceased Hindu Mitakshara

coparcener (a person who acquires a legal right in ancestral property by
birth in a Hindu undivided family), the law specifies and mandates the
assumption of a state of affairs immediately prior to the death of the
coparcener, i.e., a divide of the coparcenary property between the
deceased and other members of the coparcenary.

Upon determination of the share of the deceased parent in the

property through notional partition, their heirs, including illegitimate
children would be entitled to their portions in the share.

It has been observed by the Hon’ble Supreme Court that when the share of
the deceased in the property that would have been allotted to him if a
partition had taken place immediately before his death is ascertained, his
heirs, including illegitimate children shall be entitled to their shares in the
property which would have been allotted to the deceased on the notional
partition.

According to the Hindu Succession (Amendment) Act, 2005, the share of a

deceased person in a joint Hindu family governed by Mitakashara law can
be transferred upon the heirs by testamentary or intestate succession. Prior
to the said amendment, devolution was only practiced through survivorship.
Furthermore, the amendment laid out equal rights of succession to women
as well as men.

Conclusion
In view of the provisions laid down in various acts, the illegitimate child is
entitled to receive maintenance till the age of majority. Furthermore, the
child can claim rights in the property of the parents in terms of Section 16
(3) of the Hindu Marriage Act, 1955. Such a child is to be treated at par with
the legitimate child when claiming its share in the property. Such a child
would however not have coparcenary rights and can claim share from the
self-acquired assets as well as ascertained portion of the parent from the
ancestral property.

We can assist you with concerns related to the rights of illegitimate

children in India and understand the associated legal nuances. You
can submit a query below and get in touch with us. Karnataka High
Court: A Division Bench of B.V Nagarathna and Hanchate Sanjeev Kumar, JJ.
allowed the petition and remarked: “no child is born in this world without a father
and a mother. A child has no role to play in his/her birth.” The facts are such that
the petitioner/appellant being a son of his deceased was denied compassionate
appointment on the ground that he is born out of second marriage of his father
during subsistence of his first marriage. The decision is in line with a circular
dated 23-09-2011 Clause 2 of Karnataka Electricity Board Employees’
Recruitment (Appointment on Compassionate Grounds) Regulations,1997 (i.e.
“Regulations”). Being aggrieved, the petitioner assailed the same in the writ
petition and then by a review petition which upheld the decision. Being
aggrieved by the dismissal of the writ petition as well as the review petition
instant appeal was preferred. Observations The Court observed that the
Regulations have been made by the rule making authority being conscious of the
fact that an adopted son or daughter has the same rights in law as a son or
daughter born to a deceased Board employee. But, under the Regulations,
adopted children are expressly excluded from the scope of the appointment on
compassionate basis, which is in the realm of policy. The Court observed the
expression ‘son’ and ‘daughter’ so as to include even on illegitimate son and
daughter by various judgments of the Supreme Court for the purpose of
consideration for compassionate appointment, and Regulation 2(1)(b) cannot
restrict the expression ‘family’ in relation to a deceased Board employee to
mean only his or her legally wedded spouse and their sons and daughters who
were jointly living with him. Such a definition would run counter to Section 16 of
the Act, which is Parliamentary legislation and also Articles 14, 15(1) and 16(1)
as well as the Directive Principles of State Policy concerning children which
would include all children, whether legitimate or illegitimate, to have equal
opportunities. When the Parliament under Section 16 of the Act, has treated
legitimate and illegitimate children on par and given them equal status,
Regulation 2(1)(b) cannot restrict the expression family in relation to deceased
employee to mean only his or her legally wedded spouse and children jointly
living with him. The Court relied on judgment Union of India v. V. R. Tripathi
[(2019) 14 SCC 646] wherein it was held “We are here concerned with the
exclusion of children born from a second marriage. By excluding a class of
beneficiaries who have been deemed legitimate by the operation of law, the
condition imposed is disproportionate to the object sought to be achieved.
Having regard to the purpose and object of a scheme of compassionate
appointment, once the law has treated such children as legitimate, it would be
impermissible to exclude them from being considered for compassionate
appointment. Children do not choose their parents. To deny compassionate
appointment though the law treats a child of a void marriage as legitimate is
deeply offensive to their dignity and is offensive to the constitutional guarantee
against discrimination. The exclusion of one class of legitimate children from
seeking compassionate appointment merely on the ground that the mother of
the applicant was a plural wife of the deceased employee would fail to meet the
test of a reasonable nexus with the object sought to be achieved. It would be
offensive to and defeat the whole object of ensuring the dignity of the family of a
deceased employee who has died in harness. It brings about unconstitutional
discrimination between one class of legitimate beneficiaries — legitimate
children. The High Court has proceeded on the basis that the recognition of
legitimacy in Section 16 is restricted only to the property of the deceased and for
no other purpose. The High Court has missed the principle that Section 16(1)
treats a child born from a marriage which is null and void as legitimate. Section
16(3), however, restricts the right of the child in respect of property only to the
property of the parents. Section 16(3), however, does not in any manner affect
the principle declared in sub-section (1) of Section 16 in regard to the legitimacy
of the child.” The Court also observed that with regard to the right of a child born
out of a void marriage irrespective of the personal law under which the marriage
might have taken place to seek appointment on compassionate basis. No doubt,
validity of a marriage is dependent upon the personal law applicable to the
parties but there is also Special Marriage Act, 1954, which is not relatable to any
personal law. It is a species of a uniform civil law applicable to marriages of
persons irrespective of the religion they may belong to. Even under the said Act,
there are the concepts of void and voidable marriages. Hence, it is necessary to
protect the rights of children born from such void or voidable marriage to seek
compassionate appointments de hors the personal law applicable to the parents
of such a child. The Court observed as per Section 26 of the Special Marriage Act,
1954 deals with marriage between any two persons solemnized under the said
Act which is a void and voidable marriage (Sections 24 and 25 of the said Act
respectively) but conferring legitimacy to children born out of such marriages. It
is noted that the said provision also has an over-riding effect and a child born out
of a void or voidable marriage is deemed to be a legitimate child. The Court thus
observed for the limited purpose of this case, we find that children born out of
void and voidable marriages under other personal laws, where there is no
provision for conferment of legitimacy, must also have equal protection of the
law by treating them on par with children born out of void and voidable
marriages under the Hindu Marriage Act or the Special Marriage Act, 1954,
insofar as the appointment on compassionate basis is concerned, as interpreted
by us, under the Regulations under consideration and in light of the judgment of
the Supreme Court in [Link]. The Court thus directed to “consider the
application made by the appellant herein in accordance with the obser...

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