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Law is ever changing and it constantly adopts itself to the needs of the society. What is illegitimate now may be legitimate later. Law is forever acclimatizing to the changing culture of todays society. Practices such as sati and untouchability were both prevalent at one point in India and were later repealed by a statute forbidding them. In the United States and even most countries, homosexuality was always illegal and now, so many countries are allowing homosexuals to even get married and adopt children. As a matter of fact, India recently repealed a section which was making homosexuality a crime. India, too, is constantly adapting new laws or interpreting them as per the needs of the society. Old laws are often repealed or amended to adapt to a societal consensus in order to meet the current scenario.
Bastard Or Bastardy was the worst insult that could be used against someone for many centuries. Questioning the legitimacy of someones birth and their legal recognition depended on the nature of their birth which was not even in their hands. Over time, it was realized that it was unfair to put the onus on an innocent child as to the nature of his birth. The social stigma involving bastardy was in fact so great that laws had to be enacted in India to bring the social status of an illegitimate child at par with the social status of a legitimate child.
In order to remove the stigma of illegitimacy and to bring social reform in the society, India amended the Hindu Marriage Act and granted equal rights to children born out of voidable and valid marriages under section 16 of the Hindu Marriage Act. The amendment also recognizes the equal right of an illegitimate childs right to the property of his father. The section is however silent on the illegitimate childs right to ancestral property. It gives no indication as to whether an illegitimate child is entitled to ancestral property as property is not defined under the section.
This is a very ambiguous amendment as on the one hand, the law recognizes illegitimate children as legitimate whether they are born out of a void or valid marriage but at the same time, it is not granting illegitimate children the right in properties other than that of their father. The law remains silent on whether these children have rights to ancestral property which should otherwise have been the case if legitimate and illegitimate children are treated equally.
For many years, the right to property of illegitimate children has been in question due to the rising trend of live-in relationships prevalent in our current society. Live-in-relationships are now accepted as a form of social connection much like marriage. Children borne out of a live-in relationship are given the same status as children borne out of a void/voidable marriage i.e. they would be entitled to the property of their father provided that the relationship between their parents was equivalent to that of a marriage and not just a one night stand or come and go relationship as established by the Bombay High Court.
Law evolves over time and is ever-changing with every single judgment, setting precedents which were not in place before or establishing new interpretations to previously enacted legislations. In my opinion, to grant illegitimate children part in fathers property but not to grant them part in ancestral property is a mis-step. The court has to remember that the illegitimacy of the parents relationship and the birth of an innocent child are two completely different things and should not be viewed together. To put the onus of an illegitimate relationship on an innocent child is a gross mis-step of law and is violative of Article 300 of the Indian Constitution. The purpose of enacting this section was to remove the social stigma revolving illegitimate children and thus its interpretation in regards to property should also be extended to include ancestral property thereby making legitimate children at par with illegitimate children. This socially beneficial legislation should be interpreted with a wider scope. I am thus of the opinion that the section should be inclusive of the rights of illegitimate children to also be granted the right to the ancestral property of their father in accordance to law, like their legitimate counterparts. I hope that in the coming years, a larger bench takes a look into the changing aspects of our current society and reconsiders the rights of illegitimate children to ancestral property.
Advocate Tanya Mehta.
Siddhartha Shah & Associates