Family Law Ii.docx

FAMILY LAW II

PROPERTY RIGHTS OF ILLEGITIMATE CHILD

Name: S.VIKIRDEESH (17040141026) D.K.GNANESH (17040141033) Course: BALLB.,(HON’S) Batch:2017-2022 Semester:4th semester

Submitted to: Prof. Ashapurna Bordoloi

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TABLE OF CONTENT: 

INTRODUCTION……………………………………………………………3

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HYPOTHESIS………………………………………………………………..3

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LITERATURE REVIEW……………………………………………………..4

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RESEARCH QUESTIONS……………………………………………………4

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MUSLIM LAW ……………………………………………………………….4

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WHAT IS ILLEGITIMATE CHILD………………………………………….5

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INHERITANCE RIGHTS OF ILLEGITIMATE CHILD…………………….6

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RIGHTS TO PROPERTY OF ILLEGITIMATE CHILD……………………..6

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RIGHTS TO MAINTENENCE OF ILLEGITIMATE CHILD……………….8

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RIGHT TO INHERIT PROPERTY……………………………………………9

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INHERITANCE SHARE OF AN ILLEGITIMATE CHILD………………….9

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CONCLUSION………………………………………………………………...11

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BIBLIOGRAPHY………………………………………………………………11

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Introduction: In the Muslim law, as in different frameworks of law, parentage includes certain rights and commitments. All around there are two methods of filiation known to the law: when in doubt the law regards the regular dad as the dad of the youngster; now and again, nonetheless, reception prompts the outcome that somebody who isn't the dad of the kid procures rights like those of the dad. Reception isn't perceived in Islam, as it was disliked by the Quran. Notwithstanding filiation the other frame is 'affirmation of paternity'. The characteristic of Muslim law is that in specific situations where it is farfetched whether a man is the offspring of another, the affirmation of the dad gives on the youngster the status of authenticity. Who is an illegitimate child? An illegitimate child is a child whose parents were not married to each other at the time of his/her birth. Illegitimate child is synonymous with bastard, as in a bastard child. The plight of illegitimate children has always been pitiful. They get punishment for no fault of their own. The main question that arises here is – What is the fault of the child? In Hindu law, the illegitimate child belongs to the mother. But under Muslim law, the child does not even belong to the mother and is considered as the child of nobody. Parentage is only established in the real father and mother of a child, and only if they beget the child in lawful matrimony. Muslim Law is devoted to the notion that an illegitimate child is a filius nullius, it owes no nasab to either parent. In Hanafi Law maternity is established in the case of every child but in Shiite Law, maternity is established only if the child is begotten in lawful wedlock. They (Sunnis or the Hanafis) adopt a view that an illegitimate child, for certain purposes, such as for feeding and nourishment, is related to the mother. For these purposes the Hanafi Law confers some rights on its mother.

Hypothesis: Islam has laid great emphasis on the. Importance of property and wealth and has never considered wealth and welfare as an evil and filthy phenomenon. It has set many regulations and provisions for acquiring wealth and has laid down certain rules and limitations for its expenditure and distribution, never considering it as the sole objective of human life or the fi1.1al goal of men's struggle. As a· matter of fact, wealth is given to a person to test his spiritual strength and his response to the fulfillment of his obligations towards other. Human beings. According to Muslim Law, after the attainment of majority a girl and her brother have equal rights to fulfill their material needs and manage their own affairs: They have similar rights to hold property, and dispose it of, as they desire.

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Literature review: STUDY ON THE LEGAL POSITION OF THE ILLEGITIMATE CHILD The question of illegitimate children was first raised in the former Child Welfare Committee during its 1927 session by the Women’s Committee of the International Federation of Trade Unions, Amsterdam, which submitted a memorandum concerning the rehabilitation of unmarried mothers and the protection of illegitimate children. In consequence, the former Child Welfare Committee decided to collect information on the special measures existing in the different countries for the protection of illegitimate children.1 The results of this enquiry were published in 1929,2 and Governments were required to send information on their progress in legislation. RESEARCH QUESTIONS: 1. Who is the illegitimate child in Muslim Law? 2. Does the illegitimate child have rights over the property?

Muslim law: In Muslim Law, a son to be legitimate must be the offspring of a man and his wife or that of a man and his slave; any other offspring is the offspring of 'Zina', that is illicit connection, and hence is not legitimate. The term 'wife' essentially implies marriage but marriage may be entered into without any ceremony, the existence of marriage therefore in any particular case may be an open question. Direct proof may be available, but if there be no such proof, indirect proof may suffice. Now one of the ways of indirect proof is by an acknowledgement of legitimacy in favour of a son. This acknowledgement must be not merely of sonship, but must be made in such a way that it shows that the acknowledger meant to accept the other not only as his son, but also as his legitimate son.Thus under Muslim Law acknowledgement as a son prima facie means acknowledgement as a legitimate son. Therefore, under the Muslim Law there is no rule or process, which confers a status of legitimacy upon children proved to be illegitimate. The Privy Council in Sadiq Hussain v. Hashim Ali pithily laid down this rule: "No statement made by one man that another (proved to be illegitimate) as his son can make other legitimate, but where no proof of that kind has been given, such a statement or acknowledgement is substantive evidence that the person so acknowledged is the legitimate son of the person who makes the statement, provided his legitimacy is possible." 4

"The above discussion shows that the rules of legitimacy under the Muslim Law are logically sound whereas the rules enacted under the Hindu Marriage Act, 1955 and Special Marriage Act, 1954 are illogical as they confer legitimacy upon the children proved to be illegitimate." The Privy Council in Sadiq Hussain v. Hashim Ali pithily laid down this rule: "No statement made by one man that another (proved to be illegitimate) as his son can make other legitimate, but where no proof of that kind has been given, such a statement or acknowledgement is substantive evidence that the person so acknowledged is the legitimate son of the person who makes the statement, provided his legitimacy is possible." "The above discussion shows that the rules of legitimacy under the Muslim Law are logically sound whereas the rules enacted under the Hindu Marriage Act, 1955 and Special Marriage Act, 1954 are illogical as they confer legitimacy upon the children proved to be illegitimate."

WHAT IS ILLEGITIMATE CHILD: History of Legitimacy The history of legitimacy relates to concerns regarding the issues of inheritance and citizenship. Men in particular wanted to be sure that a child was, in fact, theirs before bequeathing their property to the child. There is a Latin saying – “Mater semper certa est” – that just about sums it up. This saying translates to mean “The mother is always certain” (about whether or not the child is hers), while the father is not always entirely sure. In 1626, British Justice Edward Coke came up with what was known as the “Four Seas Rule,” which held that, provided the husband was fertile, it could be typically assumed that a married woman’s child was her husband’s child as well. Of course, this presumption was not set in stone, though the courts typically ruled in its favor. Also in England, the Marriage Act of 1753 required couples to be married in a ceremony that was both formal and public. However, that did not stop “secret” marriages from taking place. Children who were born of those marriages were still considered illegitimate, despite their parents being technically, legally married. People who were born out of wedlock were often shunned. For example, an illegitimate child did not enjoy the same rights of inheritance, or even the same civil rights as others, depending on the society in which they lived. The United States and the United Kingdom in particular, especially up until the 1960s, held social stigmas toward extramarital births. Fathers of illegitimate children, however, did not suffer nearly the same level of criticism, or even legal responsibility for the child, due to, in part, society’s attitudes towards sex and the male gender. 5

Throughout the history of legitimacy, unwed mothers were forced to give their children up for adoption. Other families chose to have the grandparents raise the child, or other married relatives, who were said to be the siblings or cousins of the unwed mothers. In most modern jurisdictions, a child’s legitimacy as an heir can be amended under the civil law. For instance, while one law could perhaps strip a child of his formerly assumed legitimacy, another could make a formerly illegitimate child legitimate. Such was the case if a child’s parents, who were previously unmarried, chose to marry within a certain period after the child was born (typically within the first year). If this happened, then the child’s birth could be retroactively made legitimate.

Inheritance Rights of an Illegitimate Child: Today, thankfully, the inheritance rights of an illegitimate child are not that different from the legal rights of children of married parents. When it comes to leaving property to someone upon the event of death, anyone can leave anything they want to whomever they want, as long as they leave their wishes in writing. Fathers especially do not need to sign a paternity statement or even raise a child in order to leave their children something in their wills. However, if a parent is not biologically related to a child, and wants to leave that child property, then the parent musthave a will or trust that specifically names that child, else the law could decide that the child is not entitled to anything at all. The inheritance rights of an illegitimate child may not be as thoroughly protected as the rights of inheritance of a child who was either born to married parents, or made legitimate thereafter. As an example of an illegitimate child’s rights being disputed, some states in the U.S. allow an illegitimate child to fully inherit his mother’s property, but not the property of the unmarried father, if there is no will or trust naming the child. Even states that allow illegitimate children to claim their father’s property in the absence of a will or trust may actually limit the amount of time in which the children can make a claim to their father’s estate. In some states, if there is no will, a child can inherit the father’s property – if the father had either admitted paternity before his death, or if a court determined that he was, in fact, the child’s father.

Right to property of illegitimate child: In Muslim law, the illegitimate child has no right to inherit property through the father and in the classical law, as well as in some modern Islamic jurisdictions, the mother of an illegitimate child may well find herself subject to harsh punishments imposed or inflicted on those found guilty of zina. Thus, the difficult status of legitimacy in Islamic law has very important consequences for children and their parents, especially mothers. Thus the difficulty of an illegitimate child in 6

claiming property from parent/s.Under no school of Muslim law an illegitimate child has any right of inheritance in the property of his putative father. Under the Hanafi law, it seems, the mother and her illegitimate children have mutual rights of inheritance. The illegitimate child inherits not only the property of its mother but also the property of all other relations with whom it is related through the mother.Thus, when a Hanafi female dies leaving behind her husband and an illegitimate son of her sister, the husband will take one-half as a sharer and the residue will go to sister's son. Since the illegitimate child cannot inherit from the father, it cannot inherit from any other relation through the father. In Pavitri v. Katheesumma Vaidiaalingam J. held, "Mohammadan law appears to impose no burden upon the natural father of an illegitimate child..."It would, therefore, be seen that an illegitimate child is not entitled to inherit the property from either parent under Shia law; and is entitled to inherit only from its mother under Hanafi law.A reciprocal right of inheritance exists between him and his maternal relations. They are also his residuary heirs. Of course his other inheritors are his/her spouses, and his descendants, except his father and the latter's relations. Thus if an illegitimate person leaves a mother, a daughter and father, the daughter would get ½ and the mother 1/6th; the remainder would revert to them by return. The father would be excluded. Similarly an illegitimate brother and illegitimate uncle are not entitled to inherit. But a twin brother will inherit as his uterine brother (the twin brother is regarded as the son of only the mother and not that of the father, hence the term- uterine brother). The Allahabad High Court has also laid down, "when there is the question of an illegitimate child inheriting the property of his or her mother or through his or her mother, and we have to find the mother's relations, whose property he or she can inherit, obviously, those relations, must be his or her mother's maternal relations. The illegitimate child has in law no father, and he or she can have nothing to do with his or her mother's relations by subsequent marriage, as a result of which new relationships arise. For purposes of inheritance there must be some relationship between the person, on whose death the succession has opened and the person who claims title to succeed. No relationship can possibly arise between an illegitimate child and a child born of his or her mother in lawful wedlock. We, therefore, hold that a son born of a woman after her marriage cannot be considered as 'her relation', whose property her illegitimate child is entitled to inherit."Under the Shia law the illegitimate child does not inherit even through the mother. However the child of an imprecated mother does inherit from the mother and vice versa. In Shia law, illegitimacy acts as factor for total exclusion, and a bastard is not allowed to inherit either from mother or father. A distinction however is made between a child of fornication and a child whose parentage has been disallowed by the father, that is, a child of imprecation. In case of fornication, the child is excluded from inheritance; while a child of imprecation, is allowed to inherit from the side of his

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mother. Hanafi law does not recognize this distinction. The child of fornication and imprecation are both regarded as illegitimate, and inherit from the mother's side. Muslim law subscribes to the notice that an illegitimate child is filias nulius owing no nasab to either parent. The Shias take the notion of filias nulius to its logical end, and hold the view that a child born outside the lawful wedlock is related neither to the father nor to the mother. The Hanafis do not take such a rigid stand and adopt the view that an illegitimate child, for certain purposes, such as for feeding and nourishment, is related to the mother. For these purposes the Hanafi law confers some rights on its mother. Macnaughten said : “A bastard child belongs, legally speaking, to neither of the parents and it is in every sense of the word filius nulius-, it should, until it has attained the age of seven years, be left in the charge of the mother. After that age, it may make its own election with which of the parties it will reside, or it may live apart from them altogether”. The mother has the right of custody of her children till they attain the age of seven. Probably, in respect of daughters it extends upto the age of puberty. Muslim law, it seems, confers no obligation of maintenance of illegitimate children on either parents, though the Hanafis recognize the obligation of nurture till the child attains the age of seven: the Shias do not recognize even this obligation. Under no school of Muslim law an illegitimate child has any right of inheritance in the property of his putative father. Under the Hanafi law, it seems, the mother and her illegitimate children have mutual rights of inheritance. There is no process recognized under Muslim law by which a status of legitimacy may be conferred on an illegitimate child. Muslim law also does not provide for the guardianship of illegitimate children, but, it seems, in modern India, by judicial legislation, it has come to be established that guardianship Of an illegitimate child vests in its mother.

Right to maintenance of illegitimate child: Muslim laws, it seems, confers no obligation of maintenance of illegitimate children on either parents, though the Hanafis recognize the obligation of nurture till the child attains the age of seven; the Shias do not recognize even this obligation.Though the father under Muslim Law is not bound to maintain his illegitimate child, the researcher thinks Section 125 of the Criminal Procedure Code, 1973, (which should ensure that all such unfortunate children are maintained by their fathers) however binds such a father to pay for the maintenance of the child. The father 8

would be liable to pay this amount even if the mother refuses to surrender the illegitimate child to him.In the case, Sukha v. Ninni, it was held that, "An agreement to maintain an illegitimate child, for which the Mohammedan Law as such makes no provision, will in my opinion not have the effect of defeating the provisions of any law. As a matter of fact, maintenance of illegitimate children has been statutorily recognized under Section 125 of the Criminal Procedure Code of 1973 in our country and it is in consonance with this wholesome policy that the offsprings born under such circumstances are to be provided for and should not be left to the misfortunes of vagrancy and its attendant social consequences." Whereas, in Pavitri v. Katheesumma where an illegitimate daughter born to a Muslim father and a Hindu mother brought a claim for maintenance from the assets of the dead father it was held that though "an illegitimate does not inherit properties of its putative father or his relations and from this it would follow that an illegitimate child cannot claim maintenance from the assets left by its putative father and which are in the hands of the heirs of the putative father ....even though S.125 of the Cr P C imposes a statutory obligation on a Muslim father to maintain his child even an illegitimate."The Court further held, "whether the principles of Hindu Law apply or whether the principles of Muslim Law apply, the plaintiff in this case who was an illegitimate daughter born of a Mohammedan male and a Hindu female was not entitled to claim maintenance from the putative father or from the assets left by him apart from any rights that may have been conferred on her by Statute (Cr P C). Since the plaintiff had not based her claim upon any statutory right her suit for recovery of maintenance from the assets of her putative father was bound to fail."

Right to Inherit Property: Under Muslim Law, the ill-conceived youngster has no privilege to acquire property from the dad. Under the Hanafi law the mother and her ill-conceived kids have common privileges of legacy. The ill-conceived tyke acquires the property of its mom as well as the property of every single other connection with whom it is connected through the mother. In Pavitri v. Katheesumma Vaidiaalingam J. held, "Mohammadan law seems to force no weight upon the regular dad of an ill-conceived child..."Muslim Law likewise does not present any privilege to support to the ill-conceived kid, however the Hanafis perceive the commitment to sustain the youngster till age 7. In any case, such youngsters can look for cure under Section 125 of the Cr.PC which ought to guarantee that all such ill-conceived kids are kept up by their folks. The same has been perceived by the Courts in a few cases.

Inheritance share of an illegitimate child: Under Sunni Muslim law, the illegitimate child is entitled to inherit from the mother and her relations whether legitimate or illegitimate and they can inherit from him according to the Hanafi, Maliki, and shafi’i’s fiqh, the mother and her relatives inherit from an illegitimate person 9

according to normal rules of succession. An illegitimate person who does not leave a surviving son or son’s son h-l-s will have no agnatic residuary heirs.5 While according to the Hanbali fiqh, the male agnatic relatives of the mother inherit from an illegitimate person as if they were the male agnate relatives of the illegitimate person when there are no true male agnates.6 All heirs inheriting as they are given their shares first before this rule comes into operation. Therefore, according to the Hanbali fiqh, the mother’s son (Uterine brother), mother’s father (Maternal grandfather) and mother’s full brother (maternal uncle) will inherit as residuaries and exclude other surviving heirs in the capacity of ‘son’ ‘father’ and ‘full brother’. However such maternal male agnate relatives will not agnatise their female counterparts into residuaries.7 The uterine brother of the propositus can inherit in dual capacity as a Qur’anic heir and as a residuary. He will also be able to inherit as a residuary in the presence of a daughter (or agnatic granddaughter) of the propositus. The rule of tanzil is applied as under normal as principles.

Mirza Sadik Husain Khan v/s Nawab Saiyed Hashim Ali Khan In the first appeal, namely Nawab Ummat-ul-Fatima, in her own right, and also as guardian of her two sons, then minors, the first and second respondents in the first appeal, to secure the repayment of 20,000 rupees admittedly advanced by the mortgagee to this lady, with interest at one per cent, per mensem. In the second appeal it was instituted by the respondents Nawab Saiyed Hashim Ali Khan and Nawab Kasim Ali Khan, the latter by his guardian against this same mortgagee and one Sultan Mirza, claiming to be the stepbrother of the plaintiffs, for a declaration that a second mortgage made by the said Sultan Mirza of his share in all the family property in this mortgagees favour, to secure the repayment of a sum of 8,000 rupees with interest, was a nullity, on the ground that the said Sultan Mirza was not entitled to any share in the family property, first by reason of the provisions of a certain indenture dated the 5th February, 1895, hereafter dealt with, and secondly because he was not the legitimate son of his alleged father, the grantor in the said deed. It was contended in the second suit by Mirza Sadik Husain Khan, the mortgagee, that between the dates of the marriages of the Nawab with the two above-mentioned ladies he contracted a marriage in the muta form with an Abyssinian slave girl, named Zohra Kainam, who had been brought home by his father on the occasion of his making a pilgrimage to Mecca and subsequently given by the father to him, and that Sultan Mirza was the offspring of that union. The fact that such a marriage ever took place was denied by the plaintiffs in that suit, and a vast body of evidence, oral and documentary, was adduced by both sides on the issue of Sultan Mirzs legitimacy. This declaration is the only specific relief prayed for, but there is a prayerr for general relief. Fatima, described as his second wife, of the second part; and Nawab Mahomed Medi Ali Khan and the K aforesaid Fatima, described as trustees, of the third part. After reciting that the Nawab Zaigham-ud-Daula was seized and possessed for an estate of inheritance in possession of certain undivided shares in certain Zemindari villages, and other landed proper.

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Syed Habibur Rahman Chowdhury v/s Syed Altaf Ali Chowdhury In this suit the plaintiff and appellant, Habibur Rahman Chowdhury, claims a declaration that he is the legitimate son of the late Nawab of Bogra, who died intestate on the 2nd July, 1915. The suit is opposed by the late Nawab s grandson, who is the son of a legitimate daughter, and by two nephews, the sons of an elder brother. The plaintiff is admittedly the natural son of the lato Nawab, his mother having been a Jewess, Mozelle Cohen, who became a Mahomedan and cohabited with the Nawab. He was born in 1893. The Nawab had a daughter by the same lady in 1891. The Nawab s legitimate wife, the grandmother of the first defendant, died in 1890. The plaintiff based his claim on two grounds. Ha averred first that Mozelle was married to the Nawab. He further averred that on many occasions the Nawab had acknowledged him as his legitimate son. The defendants aver that no marriage ever took place. They also deny that any proper acknowledgment of legitimacy was made.

CONCLUSION: The apathy of illegitimate children Justice, it seems, has pervaded the illegitimate children in our country, for no mistake of their own. The legislature thinking reflects awareness of this area and it has seized the problem in only a limited sphere by conferring the status of legitimacy on the children born of void and voidable marriages and granting them a right to maintenance only under the Section 125 of the Code of Criminal Procedure, 1973 It was considered that debarring the illegitimate child from inheriting the property of its parents would deter further generations from entering into a sexual relationship outside marriage and would enforce a strict regime of proper sexual mores in society. However, trends and statistics have shown that the problem of illegitimate births in the country has been increasing at an alarming rate, hence the above argument to justify the exclusion of illegitimate children from inheriting property of parents cannot be bought and falls flat.

BIBLOGRAPHY:  Introduction to Muslim Law by Tahir  Muslim law in Modern India  https://blog.ipleaders.in/illegitimate-children-muslim-law/

 http://jurip.org/wp-content/uploads/2016/11/Nikita-Swamy.pdf

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