Property Law Videos - Right of illegitimate child over father's property

The legitimacy of a child in Hindu law depends on the validity of the marriage under Hindu Marriage Act. The Hindu Marriage Act applies to a person who is Sikh, Jain or Buddhist by religion. Therefore, the illegitimacy criteria followed in above three religions will be the same as followed in Hindu law. The strict interpretation of Hindu texts leads to a conclusion that a child should have been conceived after marriage to be considered as legitimate. If the marriage itself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardising the children born of the parties to such marriage.

An illegitimate child is not entitled to succeed to his father. But under the Hindu Succession Act, illegitimate children are deemed to be related by illegitimate kinship to their mother and to one another, and their legitimate descendants are deemed to be related by legitimate kinship to them and one another, and can therefore inherit from each other under the said Act.

Unlike a legitimate son, an illegitimate son does not acquire any interest in the ancestral property in the hands of his father; nor does he can be a coparcenary in a Joint Hindu Family.  He is also not entitled to enforce partition against the family. The father may, in his lifetime, give him a share of his property, which may be a share equal to that of the legitimate sons.

Prior to the passing of the Hindu Succession Act, on the death of his father, an illegitimate son succeeded to his estate as a coparcener with the legitimate son of his father, and was entitled to enforce a partition against the legitimate son. Now, under the said Act, however, he cannot succeed his father, as he is not related to him by legitimate kinship.

Though the amendment of 1976 in Section 16 now enacts a legal fiction deeming the illegitimate children as legitimate for all practical purposes including succession to their family properties but the court’s jurisprudence until now has been: Child born of void or voidable marriage can only claim share in self-acquired properties of parents not in ancestral property. Children born out of live-in relationship do not have an inheritance right over the ancestral property.