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Family Law

Info: 2026 words (8 pages) Essay
Published: 17th Jul 2019

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Jurisdiction / Tag(s): Indian law

In terms of effectiveness of addressing the rights of illegitimate children, is the Hindu Succession Act 1956 a success? At any rate, to what extent was there an intention on the part of the Parliament to remove discrimination of succession law against illegitimate children governed by Hindu law? Discuss.


“Succession in the Hindus is governed by the Hindu succession Act, 1956, it is based on the general rule of succession on the basic principle of propinquity, it means preference to heirs on the basis of proximity of relationship.” i.e; the succession is carried out on the basis of the nearness/closeness of the relationship. The law of intestate succession is concerned with matters as to who are the Heirs, what are the rules of preference among the various relations, in what manner is the property distributed in case there is more than one heir and so on. Intestate basically means dying without a will. This will is of high priority as it decides as to how and to whom the property will be given. Succession, in the sense of the partition or redistribution of the property of a former owner is, in modern systems of law, subject to many rules. Such rules may be based on the will of a deceased person. Succession implies the act of succeeding or following, as of events, objects, places in a series. In the eyes of law however, it holds a different and particular meaning. Legal succession refers to the inheritance of property in a manner defined by law. It implies the transmission or passing of rights from one to another. In every system of law provision has to be made for a readjustment of things or goods on the death of the human beings who owned and enjoyed them. The right and transmission of the right an obligations of the deceased to his heirs. Succession signifies also that right by which the heir can take possession of the estate of the deceased, such as it may be..

Succession, in the sense of the partition or redistribution of the property of a former owner is, in modern systems of law, subject to many rules. Such rules may be based on the will of a deceased person. However, there are cases in which a will cannot be expressed and eventually, there needs to be some broadly accepted rules upon which the property shall devolve upon those succeeding him. “There can be no doubt, however, that these rules primarily are the characteristics of the social conditions in which that individual lived. They represent the view of society at large as to what ought to be the normal course of succession in the readjustment of property after the death of a citizen.”

Hindus were governed by Shastric and Customary laws which varied from region to region and sometimes it varied in the same region on a caste basis. As the country is vast and communications and social interactions in the past were difficult, it led to diversity in the law. Consequently, in matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations. “The multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laws even mere complex. A woman in a joint Hindu family, consisting both of man and woman, had a right to sustenance, but the control and ownership of property did not vest in her. No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged.”

At common law, “legitimacy is the status of a child who is born to parents who are legally married to one another, or who is born shortly after the parents’ marriage ends through divorce. In both canon and civil law, the offspring of putative marriages have been considered legitimate”. For the opposite of legitimacy, the term illegitimate has been used for “the child who was considered to be illegitimate at common law if the parents were not married to each other at the time of the child’s birth even though the parents were married later”.

Before the enactment of the Hindu Succession act 1956, the illegitimate child has no share in the ancestral property. But after the enactment of the act, the illegitimate child has not got enough rights. He is only entitled with the share in property of his father once the father had been died. The illegitimate child does not have the share in the coparcenary property as compared those of the legitimate child. The amendment made by the parliament does not actually give the same right to the illegitimate child as they are not a part of the members who has the share in the coparcenary property.

The primary reason why succession act has not been as a success only because it did not address the rights of the illegitimate child. The illegitimate child in the process of succession has no authority over the property of his father. The child only has the maintenance right over the property of his father if his father dies intestate.

In “Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh & Anr.”, the facts were that the Raja was a Sudra and died leaving behind a legitimate son, an illegitimate son and a legitimate daughter and three widows. The legitimate son had died and the issue was whether the illegitimate son could succeed to the property of the Raja. The Privy Council held that the illegitimate son was entitled to succeed to the Raja by virtue of survivorship. This is very much clear from this case that there was no such provision was there that illegitimate child will definitely get the property. In this case, once the legitimate child died, the property has been transferred to illegitimate child because there was no other successor of that property. After the Hindu Succession Act, 1956 had been passed, there was a clause for illegitimate child but he is only entitled for his parents property, he is not entitled for the ancestral property.

But comparing the period before and after the enactments of the Succession act, the earlier succession act did not allow the illegitimate child to have no say in the property of his father even his father dies intestate but now after considering the state of innocence and not guilty, it has been enacted and amended that the child has been allowed to have now maintenance right over the property of his father if his father dies intestate. The child would be held liable if he fails to perform the right to performance without any right to ask for the partition and also the share in the coparcenary property. Even though after giving such right to the illegitimate child, but still the legitimate child has much more superior rights over the illegitimate child for example full share over the property and also the coparcenary property unlike the illegitimate child.

In Gur Narain Das & Anr. v. Gur Tahal Das & Ors., a Bench comprising Justice Fazl Ali and Justice Bose agreed with the principle laid down in the case of Vellaiyappa Chetty (supra) and supplemented the same by stating certain well- settled principles to the effect that “firstly, that the illegitimate son does not acquire by birth any interest in his father’s estate and he cannot therefore demand partition against his father during the latter’s lifetime. But on his father’s death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son(s) with a right of survivorship and is entitled to enforce partition against the legitimate son(s) and that on a partition between a legitimate and an illegitimate son, the illegitimate son takes only one-half of what he would have taken if he was a legitimate son.”

After analyzing the Section 16(3) of the Hindu Marriage Act 1955, it is very much clear that the amended Section assumes that such illegitimate children would never be entitled to “any rights property of any person who is not his parent if he was not entitled to them, by virtue of his illegitimacy, before the passing of the amendment.” Both Clauses (1) and Clauses (2) of Section 16 clearly state that such children shall be legitimate.  If such children are declared legitimate, then they would not be discriminated against and such illegitimate children would be at par with other legitimate children, and they would have right to all the property of their parents, both acquired by himself or by ancestral. In Section 16 (3), where the prohibition contained will be applicable to such illegitimate children in respect to property of any person other than their parents.

The Parliament through Section 16 indented to eliminate the shame attached to such child who was born and devoid of such void marriage and such child were eliminated from the status of a legitimate child. When the amendment was made in 1976, where the Parliament introduced Section 16 into the Hindu Marriage Act 1955. In that Section, the illegitimate child has been given status equal to the legitimate child. That is what required to be done in the Sections 16(1) and (2) of the Act. But the parliament was aware of the consequences of such status given to an illegitimate child, where it would also have an impact on other person who are in no way responsible for the birth of such a child. The Parliament solved the problem by introducing Section 16(3) to the effect that such an illegitimate child who is considered illegitimate according to Section 15(1) and (2), would have right in the property of his parents and no one would have that right.

The Hindu Succession Act 1956 and the Hindu Marriage Act 1955 did not protect the right and interest of the illegitimate child as it was an act made in order to distribute the property among the joint hindu family equally and lawfully. Though it explains each and every right the legitimate child incurs but when it comes to the right of the illegitimate, it only says that he has the right only in the ancestral property and that also after the father death and the illegitimate child cannot even ask for his share in th property and even for the partition of the parental property.


The hindu succession act discriminates between a legitimate and illegitimate child. The illegitimate child does not get a share equal to that of a legitimate child. Infact they are also not considered a part of the coparcenary. The parliament while passing an act has to make sure that it conforms with the basic fundamental rights granted by it to the citizens. This act the parliament fails to comply with the principles of equality and justness. Through this act an effort was made by the parliament to eliminate discrimination. There was an improvement in the status of the illegitmate child and certain rights were granted. This much required amendment changed their position completely. But now when we look at the act we find some serious lacunas. There is a need to bring further changes. I strongly feel there should equal treatment of legitimate and illegitimate children with respect to succession. There should not be room for any kind of discrimination. In this way the act will also be in harmony with the basic principles of law. Right to equality will also be ensured.

In my opinion it was very important that such classification of legitimate and illegimtae should altogether not be made. One should not fragmentize the child into legitimate child, legitimated child and illegitimate child, because so long as little children are stigmatized and allowed to suffer there is no true love in this world. We must have a pragmatic legal approach and adopt measures so that the bastardization of the child does not find place in any statute book.

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