Should Illegitimate Child Get Ancestral Property?

  •   Sat, Jul 29 2023
  •   By John B Monteiro

July 29, 2023

“The deed is done what to do with dagger?” – William Shakespeare (1564-1616), English dramatic poet in Macbeth, Act 2.

Background: Macbeth walks in on his waiting wife with bloody daggers in his hands. The deed has been done, and Macbeth is horrified by his actions. Plus he has managed to mess up the plan by bringing the daggers away from the scene of the crime (he was supposed to leave them there to point the finger at Duncan’s drunk servants). Since Macbeth is too shaken up to do anything, Lady Macbeth takes charge, calls him a wimp, and hauls the daggers back to Duncan’s chambers. When she comes back, she tells a still distraught Macbeth to snap out of it, wash the blood off his hands, and put on his nightgown, in case someone finds them awake.

A similar scenario occurs when men sow their wild oats. It was common for rural landlords to have “keeps” from among the families of farm workers and clear the scene by sending their husbands on outdoor work at distant places so the scene is clear for extra-marital sex. If it resulted in pregnancy and child-birth is a different matter and beyond the scope this topic-essay which has been the subject of a recent Supreme Court judgment published in The Times of India and excerpted here.

Supreme Court examines if illegitimate child has right over ancestral property

The Supreme Court on July 26, 2023 took up an interesting question concerning Hindus: Would an illegitimate child born out of a void or voidable marriage be entitled to the property of parents or have coparcenary right over the properties belonging to a Hindu Undivided Family (HUF)?

As some of the contesting counsel veered towards a consensus that under Section 16(3) of the Hindu Marriage Act, 1956 a child born to a void or voidable marriage would be entitled to an equal share with children born to the legitimate wife/husband from the parent’s property, some others propped a doubt as to whether that property would include the self-acquired property of the parent or the inherited ancestral property.

It was explained by some counsel as a bar on the right of an illegitimate child over the properties held under HUF, where every child born to valid marriages within the undivided family is entitled to a share of jointly-owned property the moment he/she takes birth.

Even after day-long engrossing arguments, when a bench of Chief Justice D Y Chandrachud, and Justices J B Pardiwala and Manoj Misra intended to reserve the verdict, several counsels desired to place their submissions on this issue, forcing the court to schedule further hearing on Thursday. The genesis of the issue was from a trial court in Karnataka, which in 2005 ruled that children born of illegitimate marriage had no coparcenary rights over ancestral properties of parents. A district judge reversed the trial court’s view.

However, the Karnataka HC ruled that “Section 16(3) of the Hindu Marriage Act makes it clear that illegitimate children only had the right to the property of their parents and no one else. It said that once the HUF/ancestral property is divided on the death of the parent, the illegitimate child can have share in the portion of property that accrued to his/her parent, but with a caveat that such a right would emanate only if such parent died without a will”. When the Karnataka HC’s ruling was challenged before the SC, a two-judge bench had on March 31, 2011 referred it to a three-judge bench and framed the question—whether illegitimate children are entitled to a share in the coparcenary property or whether their share is limited only to the self-acquired property of their parents under Section 16(3) of the Hindu Marriage Act?

In 2011, the bench had said, “The court must remember that relationship between the parents may not be sanctioned by law but the birth of a child in such a relationship must be viewed independently of the relationship of the parents. A child born in such a relationship is entitled to all the rights which are given to other children born in a valid marriage. This is the crux of the amendment in Section 16(3).”

I am withholding further developments in this case so that readers have scope for speculative response.

The subject is open to many views. What are yours? Your response is welcome in the format given below (Pl. Scroll down a bit).

 

Also read:

 

 

 
By John B Monteiro
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Comment on this article

  • Sanjay, pune

    Fri, Aug 11 2023

    All the children are legitimate....if father has married two wives birth taken child is innocent why they differentiate legitimate and illegitimate

  • I J S Shet, Mangalore. Rosario

    Wed, Aug 02 2023

    Namaskar! Mr.John B Monteiro has given many topics over the years and proved food for introspection. It is appreciable that he has just crossed his 85th Birthday recently. Daijiworld has tried to encourage many English writers, barring a few. Thrilled to see the special VEEZ Weekly English Edition ( my small contribution is also included in it) just released on Daijiworld too it must be seen by all. It is time that with the new outlooks the world is producing recently, the concept of ancestral property should be made obsolete. It is this greed for easy unearned family wealth that is generating immorality everywhere and has since eternity. Parents are selfish if they want only their family and descendants to corner wealth and power, which is commonly ill-gotten - generally it is cause for immorality. Wealth and property belongs to God and should be only a common asset. The whole matter needs a revolution.

  • mohan prabhu, mangalore/canada

    Tue, Aug 01 2023

    A child is the legitimate child of the mother but whose child is she carrying? That is the question. Unless paternity tests refute that her husband had sown the seeds, the child becomes illegitimate and then there would be a search for the legitimate father. In the case of inheritance, unless the non-father husband adopts the child (which he might very well do, as he may be incapable but desires a child), then there is no problem in getting the share of the putative father in ancestral property because it is his share which goes to the adopted child. Problems arise in case of in vitro fertilisation especially as it some times happens there is a mix-up of sperms. To avoid all these problems, the father (and/or the mother) should transmit property by a duly execued Will or other testamentary document.

  • k b r, Mangala Uru

    Sun, Jul 30 2023

    all children are legitimate ... if the son / daughter prove fatherhood through medical tests, they are entitled to share in father's ancestral property ...


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