Does India need Uniform Civil Code? - Part - III | In relation to the Illegitimate children’s Inheritance Rights


As per the Law Commission 110th Report, the child encompasses – an adoptive child (as per the personal law) and an illegitimate child. However, such changes are not appeared to be incorporated under the contemporary personal laws to a great extent. 

A. Hindu law 

§ 16 of the HMA the children born out of the void or voidable marriage can be regarded as legitimate; however, as per § 16 (3) put obstruction to have their right over the property of any other person other than the parent. Moreover, in the case of Revanasidappa v. Mallikarjuna, it was held that the legitimate children’s right over property cannot be restricted to the parent’s self-acquired property but also in ancestral property as “the child born out of such relationship is innocent”.[1] However, while discussing upon these questions in view of the child born out of living-in-relationship, the court held that those children cannot be categorised either as coming from the void or voidable marriage, so, § 16 will not applicable on them. So, it is required to enact a law to provide those children with the right to inherit property from their parents. 

B. Muslim Law 

In Muslim law, acknowledgement of father leads to the legitimacy of the children. However, such acknowledgement is not sufficient to hold that person legitimate when it is proven that a person is illegitimate.[2] Now, in case a woman gives birth to an illegitimate child, along with the exclusion of the child, the woman is also punishable for Zina.[3] Under the Hanafi law, an illegitimate child can inherit the property of the mother but not of father.[4] Under the Shia law, there is the distinction between a child of fornication, who cannot inherit either from father or from mother, and child of imprecation who inherits from mother.[5] Moreover, living-in-relationship do have any status in Muslim law; however, maintenance can be demanded under § 125 of CrPC. 

C. Christian Law 

Under Christian law, illegitimate children have no inheritance right. Also, children from an annulled marriage due to impotency or the prohibited degree of the contract would not be considered as legitimate and thereby they cannot be entitled to inheritance. 

So, § 21 of the Indian Divorce Act should be amended to provide legitimacy to children who have born out of the annulled marriage as the standing provisions are hampering the benevolent object of the § 16 of HMA and § 21 of the Indian Divorce Act. 

D. Parsi law 

Though illegitimate children may have maintenance under § 125 of the CrPC, there are no provisions proving inheritance rights. § 3(2) irrespective of the fact that marriage is invalid, the children born out of such marriage will be legitimate. So, it shows that that child should have inheritance right over the property under the domain of Act of 1925. 

In view of the above discussion related to illegitimate children, it is observable that there should be inheritance right to be given to illegitimate children. Moreover, the Law Commission in the 110th Report has recommended defining the ‘child’ in the Act 1925 to encompass illegitimate children. 

Suggestions and Concluding Remarks  

In view of the contemporary times, with the emergence of the notions which focuses on the nuclear family and gender neutrality, the age-old personal law provisions seem to be outdated and discriminatory in all types of personal laws (at least in view of the inheritance and succession law). In view of these new upcoming notions, the emergence of UCC can be said to be somewhat as a need of the time as it lays down a unified system of inheritance and Succession which would target the highlighted areas of the personal laws. Also, it would be easier to target all the areas of reformation at the single-stage rather than amending each provision of personal laws. 


LJCS: Legal Journal for contemporary Society


Moreover, the weakened part of the society has already suffered a lot in lack of UCC for all. It is also noteworthy that most of the developed nations (e.g., Italy) across the globe have uniform law pertaining to family matters. However, due to diversity, it would not be as easy as western nations to implement UCC. Nonetheless, it is the time to realise that whether in the sake of protection of some religious rights, which often discriminates and arbitrary on weakening part of society, is it judicious to infringe upon the most important other rights of our constitution, i.e. right to equality and right to life (which is not limited to mere an animal life)[6]. It also appears that general people, especially from minority class, have a misconception regarding UCC which make them oppose the uniform law. They must understand that UCC does not insist individuals of one religion to practice rituals of other religion (or form the spirit of any religion); however, it only tries to harmonise personal laws. 

Since the women are going through injustice in name of religion by retaining some ancient customs, it is the need of time to have a UCC which provide equal rights to men and women. It is also suggested that it is a misconception that UCC can lead to hampering the basic essence of the religions (especially, minorities); also, if we take the example of Muslim personal laws and try to find whether any change towards maintaining better equality and stability in society would hamper its essence, the answer will be no, as most of the Muslim countries (like Egypt, Turkey, Pakistan, et al.) have successfully reformed their laws without affecting the essence of their religions. 

So, UCC can be something mandatory and much more judicious for society in modern time. Thereby, it is suggestive that Law Commission must revisit its position and rethink over implementing UCC in a flexible way (if not possible otherwise), so that it must suit each and every religion in India and not hamper the beauty of its diversity. 

References:

[1] (2011) 11 SCC 1. 

[2] Sadik Hussain v. Hashim Ali, (1916) 43 I.A. 212, 234. 

[3] Fyzee, supra note 22, at 191. 

[4] Bafatun v. Bilaiti Kanum, (1903) 30 Cal. 683. 

[5] Fyzee, supra note 22, at 463. 

[6] Kharak Singh v. State of Uttar Pradesh, 1963 AIR 1295.

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