Property Rights of Illegitimate Children

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How legitimate is an illegitimate child’s right to property?

The paternal link of Congress leader ND Tiwari with Rohit Shekhar, proven after a DNA test, has stirred up many questions that remain unanswered in the laws governing Hindu social relationships and inheritance.

The laws on social issues in Hindu religion - marriage, succession and guardianship -- were framed in 1956. Various amendments have been effected by Parliament and state legislatures from time to time to address prickly issues which surfaced after being kept under the carpet for years being viewed as uncomfortable.

One important amendment was carried out in 1976 to Section 16 of the Hindu Marriage Act, 1956, conferring the right of inheritance to father's property on children born out of void or voidable marriages, whether or not so declared by a court of law.

But marriage, be it void or voidable, between a man and woman was a pre-condition to bestow right on their progeny, even if illegitimate in the eyes of society, to lay claim over the father's property.

The Supreme Court in Jinia Keotin vs Kumar Sitaram Manjhi [2003 (1) SCC 730] said, "Section 16 of the Act, while engrafting a rule of fiction in ordaining children, though illegitimate, to be legitimate, notwithstanding the marriage was void or voidable, chose also to confine its application, so far as succession or inheritance by such children are concerned, to the properties of the parents only."

This means, a child born out of a legally invalid marriage could claim right to inherit his father's property alone and not lay inheritance right over ancestral property, which legitimate children could.

What happens to children born from live-in relationships, where no marriage has taken place? The Supreme Court had presumed a man and woman to be married despite them only having a live-in relationship if they lived for a very long time under one roof and were known in society as husband and wife....
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