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Property Rights of Children Born out of Wedlock

– Arshad Shaikh

The Supreme Court passed a judgment on September 1 regarding the property rights of a child born out of wedlock. The Chief Justice of India, Justice DY Chandrachud delivered the judgment. He ruled that a child born from a marriage that is either void or voidable can still inherit a share of his/her parent’s property in a Hindu family that follows the Mitakshara School of Law.

The Mitakshara is an ancient Indian school of law interpreting Yajnavalkya Smriti regarding family, property, and inheritance law and establishes rules for succession and inheritance in Hindu families. However, there was a caveat attached to the judgment. The child would not have rights to anyone else’s property in the family. His/her share would just be confined to his/her parent’s share.

Void and Voidable marriage under Hindu Marriage Act
A void marriage is never valid from the start. Under Section 11 of the Hindu Marriage Act, a marriage is considered void if it does not fulfil certain conditions mentioned in an earlier Section 5 of the Act. They are

  • neither of the couples should have a living spouse at the time of marriage.
  • At the time of the marriage –

(a) both the parties should be able to give consent and they should be of sound mind.

(b) Neither party should be subject to any kind of mental disorder nor should the person be unfit for marriage and procreation.

(c) Neither party should be at risk of recurrent episodes of dementia or epilepsy.

  • By law, the couple must be an adult, the bride must be 18 years of age and above and the groom must be 21 years of age and above.
  • Both the partners should not fall under the degree of prohibited relationship.
  • Both the partners must not be Sapindas of each other. A voidable marriage (Section 12 of the Hindu Marriage Act) is one that remains legally binding and valid until a competent court issues a decree nullifying it. This type of marriage is considered entirely valid unless one of the spouses chooses to void it.

A voidable marriage bestows upon the couple all the rights and responsibilities of a typical marriage, granting them the status of husband and wife until a court annuls it. In such a marriage, the court has the authority to issue an annulment decree if one of the parties files a petition seeking it.

The inheritance for a child outside marriage
The Chief Justice explained that to figure out how much the child can inherit, they first need to determine how much the parent would have gotten if the property were divided before the parent’s death. This is called a “notional partition.” Once they figure out the parent’s share through this notional partition, the child can get their portion.

The Chief Justice also pointed out that the Hindu Marriage Act says that children from void or voidable marriages are considered legitimate. This means they have rights to their parent’s property. The court’s decision says that these children should be treated as legitimate family members when it comes to inheritance under the Hindu Succession Act.

Before a law change in 2005, property in a joint Hindu family could only be passed to family members through survivorship. Now, it can also be passed through a will or if someone dies without a will (intestate). It was stated that this case started in 2011, and a Division Bench of the Supreme Court decided that children from void or voidable marriages should have rights to their parent’s property.

The case focused on a part of the Hindu Marriage Act, Section 16(3). The new decision supports that idea. The apex court said that children born from marriages that are not valid can still inherit their parent’s property, but only their parent’s share, and not anyone else’s property in the family. This is because the law considers them legitimate for inheritance purposes.

Islamic viewpoint on the legitimacy and inheritance for children out of wedlock
Islamic law has specific rules about who is considered the legal parent of a child depending on when the child is born and the circumstances of the parents’ relationship. Children born out of wedlock typically inherit only from their mother and not from their father in Sharia law.

This is how Islamic law (Shariah) deals with the parentage and inheritance of a child born in the following situations.

  1. If a man has a sexual relationship with a woman and then later legally marries her, and she has a baby six months or more after they get married, that child is considered the legal child of the man. It is assumed to be from their legal marriage.
  2. But if the woman has a baby less than six months after they get married, even if they are legally married at the time, that child is not considered the man’s legal child. Instead, it is seen as illegitimate and is only attributed to the mother.
  3. If the woman says that she got pregnant by the man before they got married, even if they later legally marry, the child is still not considered the man’s legal child. It is only considered the child of the mother.
  4. However, any other children born to the man and woman after they are legally married are considered half-siblings from the mother’s side to the child born before the marriage. This is because the child born before the marriage is not recognised as the man’s legal child and does not have rights to inherit from him according to Shariah law.

However, here is a provision in Sunni Islamic law that allows a person to designate up to one-third of their estate for specific beneficiaries, including illegitimate children. This means that if someone wants to provide for their illegitimate children in their will, they can allocate a portion of their wealth, up to one-third of it, to be shared among them.


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