Rights of Illegitimate children over Ancestral Property

Entitlement to the ancestral property totally depends on the will which was prepared by those grandparents or parents. But sometimes a situation arises where unforeseen circumstances take place, where the children lose their parents in some tragic incident. There’s a high probability they wouldn’t have made a will. What happens thereafter to their inheritance rights of the children? What happens if the child is adopted or the parents get a divorce?

Section 16 (3) of the Hindu Marriage Act, specifies that “such children are only liable to the properties of their parents and not of any other relationship,” which governs the inheritance rights of illegitimate children. This suggests that an illegitimate child would only be entitled to his father’s own property, not his paternal family’s property. However, a Supreme Court decision states that unmarried children have the right to lodge a claim to both their father’s own property and his ancestors’ property. Despite this decision, there are still questions that remain unanswered and misunderstandings regarding the legitimacy of illegitimate children’s claims to the inheritance rights of their ancestral property. 

The supreme court held property rights of children either illegitimate or legitimate including both self-acquired and inherited property can be acquired, under the Hindu Marriage Act.

Child Legitimate or not Under The Hindu Marriage Act

The core of Section 16 (3) mentions the parents’ relationship may not be recognized by the law, the birth of a child in such a relationship must be evaluated separately from the parent’s relationship. An innocent child born in such a connection is entitled to all the same rights as other children born in legally binding marriages.

It was clearly stipulated that children born in a void or voidable marriage, i.e., a second marriage, should be legitimate under Sections 16 (1) and 16 (2) of the Hindu Marriage Act. If they were recognized as legitimate, they would not be subject to discrimination and would have the same rights to their parents’ property as other legitimate child rights, including any inherited property.

With regard to property owned by any person other than their parents, these children are subject to the prohibition in Section 16 (3). We find it intriguing that the legislature used the term “property” without qualification and without distinguishing it from either self-acquired or inherited property. It has been left broad and all-encompassing.

Given the shifting societal norms of legitimacy in every community, including our own, Section 16(3) calls for a liberal reading. What was once considered illegal may now be accepted. The idea of legitimacy derives from societal consensus, whose formation of diverse social groups is crucial. The HMA aims to bring about social reforms, and Section 16’s evident goal is to grant innocent children the social status of legitimacy. This law aims to remove the taboo of illegitimacy of such children, who are just as innocent as any other children, for socially beneficial reasons.

One point needs to be made clear, though only marriages that are void or voidable are eligible for the benefit provided by the modified Section 16. In the event of shared family property, such children will only be entitled to a share of their parent’s assets; they are not allowed to make a separate claim. When an ancestral property is divided, it stands to reason that the property that belongs to a child’s parent is considered to be their self-acquired and absolute property.

Right to the property of children legitimate or illegitimate

According to Article 39 (f) of the Constitution, children and youth are protected against exploitation and against moral and material desertion, and children are given the opportunity and facilities to enhance in a healthy and nurturing way and in conditions of freedom and dignity.  The constitutional right to property is no longer a fundamental one, although Article 300A nevertheless protects it from being taken away by judicial order.

Such children would be entitled to whatever becomes the property of their parents, whether self-acquired or ancestral since Section 16(3) made no restrictions in this regard.

If you are looking to know more about the inheritance rights of illegitimate children or have any dispute regarding the inheritance of the ancestral property, then you may contact lead India, we have knowledgeable experienced lawyers who can help and assist you. Lead India believes in fighting for the child’s rights.