Author(s): Sukriti Chaudhary
Paper Details: Volume 3, Issue 3
Citation: IJLSSS 3(3) 36
Page No: 461 – 469
ABSTRACT
This paper explores legislative reforms across diverse legal systems aimed at securing succession rights for children born outside of marriage. Historically marginalized under the label of “illegitimate,” these children were frequently excluded from inheritance, especially from paternal estates. Modern legal frameworks guided by constitutional equality mandates and international human rights norms have increasingly sought to eliminate such discrimination. The study adopts a comparative perspective, examining reforms in countries across various legal traditions, including France, Germany, the United States, Russia, Japan, South Africa, and Nigeria. It also delves into India’s pluralistic legal landscape, assessing the treatment of illegitimate children under Hindu, Muslim, Christian, and Parsi personal laws. The paper highlights the global movement toward non-discriminatory succession rights and addresses the persistent legal and cultural challenges rooted in tradition and religion.
Keywords – Illegitimate children, succession rights, inheritance law, legislative reforms, comparative law, personal laws, Hindu law, Muslim law, Christian law, Parsi law
1. INTRODUCTION
“The accident of birth must never determine a child’s destiny yet, for centuries, legal systems around the world did exactly that by denying inheritance rights to children born outside wedlock.”[1] Illegitimacy, historically defined as the state of being born to parents not legally married, has long been imbued with a profound social stigma in most societies. In the past, this social disapproval was reflected in legal disadvantages, especially in inheritance law. Illegitimate children usually termed “children born out of wedlock” were routinely excluded from rights to inherit from their parents’ estates, particularly their father’s, unless specifically mentioned in a will. This legal exclusion was maintained on the basis of premodern doctrines originating in patriarchal and religious ideologies, under which legitimacy was directly tied to moral order, honor of the family, and social norms.
The effects of this discrimination were pervasive. Illegitimate children were both economically at a disadvantage and, in many instances, legally invisible. This legal exclusion perpetuated social hierarchies and entrenched cycles of poverty and exclusion. But with the development of human rights rhetoric and the doctrine of equality before the law, most jurisdictions around the world have increasingly amended their laws of inheritance. These amendments seek to protect the rights of all children regardless of whether their parents are married or not and represent a wider commitment to eradicating discrimination on grounds of birth.
In the last hundred years, many nations have enacted legislative provisions and constitutional laws that grant equal rights of inheritance to all children. Of particular note are international human rights instruments like the United Nations Convention on the Rights of the Child (UNCRC), which have contributed to the development of these reforms. Nevertheless, legal inequalities still persist, especially in nations where family affairs are subject to personal or religious law.
This article undertakes comparative legal examination of legislative changes that are designed to guarantee the succession rights of children born out of wedlock. Specific focus has been placed on the Indian scenario, where succession under Hindu, Muslim, Christian, and Parsi laws is regulated differently, and thus succession rights become fragmented and prejudiced.
CHAPTER 2. HISTORICAL CONTEXT
The idea of illegitimacy has profound historical origins and has played a significant role in establishing the legal and social status of people in most societies. In the past, being born outside the marriage institution not only caused social stigma but also legal exclusion, especially with regard to inheritance. Both the common and civil law traditions made the legitimacy of birth a pre-condition for rights of succession, particularly from the father. It was founded on the belief that inheritance was reserved for patrilineal lineage, marital faithfulness, and maintaining property in the legally approved family.
In Western Europe, where the Roman law and afterwards the Napoleonic Code applied, illegitimate children were not only excluded from inheritance but were only included if legitimized through later marriage.[2] This exclusion was also upheld by the British common law tradition until statutory changes in the 20th century. Throughout most of the world, the Church and religious teachings strengthened the exclusion of rights to illegitimate children, as the principles of legitimacy became linked with moral and social order.[3]
In India, religious personal laws governed the historical legal framework. Illegitimate children were not given rights to ancestral property and could inherit only from their mother under Hindu law.[4] Islamic law permitted limited inheritance, which was mostly from the mother, and Christian and Parsi laws also excluded such children unless mentioned in a will. The colonial legal system formalized many of these discriminatory provisions, and they were mostly retained after independence.
As time went on, international developments in human rights, especially following the adoption of the Universal Declaration of Human Rights (1948)[5] and the United Nations Convention on the Rights of the Child (1989), started to erode the legitimacy-based distinctions. These international instruments focused on the principle that children should be treated equally under the law regardless of the circumstances of their birth. This spurred legislative reforms in most jurisdictions, though reform has continued to be uneven, especially in jurisdictions with deeply rooted religious or customary legal systems.
CHAPTER 3: COMPARATIVE ANALYSIS
FRANCE
Traditionally ruled by the Napoleonic Code, French law had discriminated against illegitimate children. Major reforms are:
- Law of 1972[6]: Equalized illegitimate children’s rights, allowing them to inherit from both parents.
These reforms demonstrate France’s alignment with European human rights standards.
GERMANY
After WWII, Germany’s Basic Law (Grundgesetz), enacted in 1949, provided for equality before the law, which formed the basis for major reforms in the status of illegitimate children. In 1969, the Legitimacy Law enabled children born outside wedlock to inherit from their fathers, a privilege they had previously been deprived of. This reform was based on the constitutional doctrine of equality under Article 3 of the Basic Law.[9]
German courts have always insisted on this equality, holding that differences between legitimate and illegitimate children in matters of inheritance offended their right to equal treatment under the constitution.[10]
UNITED STATES OF AMERICA
In the U.S., although the laws of succession are generally state law, federal constitutional law, specifically the 14th Amendment’s Equal Protection Clause, has been important to ensure illegitimate children are not discriminated against when it comes to inheritance. The U.S. Supreme Court made major impact in this subject of law by landmark decisions.
In Levy v. Louisiana (1968)[11], the Court invalidated a Louisiana law which deprived illegitimate children of the ability to sue for damages when their mother died through wrongful conduct, holding that such discrimination constituted a violation of the Equal Protection Clause. This case set the stage for additional judicial challenges to discriminatory inheritance laws.
In Trimble v. Gordon (1977)[12], the Court struck down an Illinois statute that excluded illegitimate children from inheriting from their fathers unless paternity was proven during the lifetime of the father. The Court ruled that the statute infringed on the constitutional right to equal protection because it discriminated against children on the basis of whether their parents were married or not.
The Uniform Probate Code (UPC)[13], passed in some U.S. states, is an additional step toward parity. The UPC provides for illegitimate children to inherit from their fathers after paternity is determined, removing differences between legitimate and illegitimate children in succession contexts.
RUSSIA
Soviet law, which abolished the concept of illegitimacy, paved the way for the modern Russian legal framework. Under the Russian Civil Code[14], there is no legal distinction between legitimate and illegitimate children in terms of inheritance rights. All children, regardless of their parents’ marital status, are entitled to inherit equally. This ensures that illegitimate children are treated on par with legitimate children in matters of succession, reflecting Russia’s commitment to equality under the law.
JAPAN
Until 2013, Article 900 of Japan’s Civil Code[15] restricted inheritance rights for illegitimate children, allowing them to inherit only half of what legitimate children would receive from their fathers. This law was based on the assumption that the legitimacy of a child’s birth was crucial for inheritance rights, reflecting traditional views on family and succession. However, in 2013, the Supreme Court of Japan[16] declared Article 900 unconstitutional, ruling that the distinction between legitimate and illegitimate children violated the constitutional principle of equality. The Court emphasized that such discrimination was inconsistent with Japan’s commitment to fundamental human rights. In response to the Court’s ruling, the Japanese Diet[17] amended the Civil Code in 2013, eliminating the legal distinction between legitimate and illegitimate children in inheritance matters. As a result, all children now have equal inheritance rights, regardless of the marital status of their parents.
SOUTH AFRICA
After the fall of apartheid, South Africa’s 1996 Constitution[18] ensured equality and outlawed discrimination on grounds of birth status. This equality promise in the constitution had direct consequences for illegitimate children’s inheritance rights. Illegitimate children in South Africa were subject to serious inequalities in inheritance law, especially in the Intestate Succession Act, which disqualified them from inheritance from their fathers unless they were formally recognized.
The 2003 Bhe v. Magistrate[19], Khayelitsha judgment was a watershed in the history of South African law. It was held by the Constitutional Court that exclusion of children born out of wedlock from inheritance was unconstitutional since it infringed on the right to equality enshrined in the 1996 Constitution. The Court held that such distinctions sustained historically entrenched inequalities and discriminatory practices against children born out of wedlock.
In reaction to this historic judgment, the Intestate Succession Act[20] was revised, so that all children, including illegitimate children, could inherit from both their parents. This change confirmed the equality principle and brought South Africa’s law in line with its post-apartheid commitment to non-discrimination.
NIGERIA
The 1999 Constitution of Nigeria guarantees equality and prohibits discrimination on the grounds of birth status, aligning with international human rights standards. However, the implementation of these constitutional protections has been uneven, especially with regard to inheritance rights for illegitimate children.
Under Nigerian customary law[21], illegitimate children generally do not inherit from their fathers unless they have been formally acknowledged or legitimized. This legal framework reflects traditional beliefs and practices that often prioritize marital status as a key determinant of inheritance rights. As a result, many illegitimate children are excluded from inheritance under customary law. Despite these challenges, legal recognition and reform efforts are slowly gaining traction, particularly in urban areas where customary practices are being challenged. Courts are increasingly scrutinizing discriminatory practices and pushing for reforms to ensure that children born out of wedlock are treated equally under the law. However, implementation remains inconsistent, and customary law still holds significant influence in many regions of the country.[22]
CHAPTER 4 : SUCCESSION RIGHTS IN INDIA: A PLURAL LEGAL SYSTEM
HINDU LAW
In India, Hindu succession is governed by the Hindu Succession Act, 1956 (HSA)[23], and legitimacy is traditionally significant in determining inheritance rights. Historically, illegitimate children (those born outside wedlock) were considered non-heirs under classical Hindu law and could not inherit coparcenary or paternal property. However, the Hindu Marriage Act, 1955 (Section 16)[24] was amended in 1976 to address the status of children born from void or voidable marriages. The amendment declared such children to be legitimate, meaning they could inherit property from both parents, but not from the joint family or coparcenary property.
A significant shift occurred in Revanasiddappa v. Mallikarjun (2011)[25], where the Supreme Court of Indiaheld that even children born outside valid marriages have a right to ancestral property. The Court interpreted Section 16 liberally to protect the rights of such children, stressing that the child should not suffer for the parents’ conduct. Thus, modern judicial interpretations under Hindu law are gradually expanding the inheritance rights of children born outside of marriage, especially in view of constitutional principles of equality.
MUSLIM LAW
The Muslim inheritance falls under the control of the Muslim Personal Law (Shariat) Application Act, 1937 and interpreted most commonly through classic schools like Hanafi and Shafi.[26] Hanafi law stipulates that children born out of wedlock (walad al-zina) are not deserving of inheritance from their father but can inherit from their mother and their maternal lineage. But in Mohammed Salim v. Shamsudeen, 2019[27] the Madras High Court ruled that offspring born out of unlawful (fasid) marriages not void were legitimate and could inherit from the father. Though this forward-looking decision, there has been no legislative change, and the system continues to be largely based on classical jurisprudence.
CHRISTIAN LAW
Christian succession within India is governed by the Indian Succession Act, 1925[28]. Under this Act, illegitimate children are excluded in general from intestate succession. They can only inherit if specifically mentioned in a will or validly recognized by the father in law.
In Jane Antony v. Retna Raj (2009)[29], the Supreme Court reinforced a literal approach, deciding that children born out of wedlock outside valid marriage do not inherit anything by way of intestate succession. No substantial legislation has attempted to reverse this disparity.
PARSI LAW
Parsi inheritance is regulated by the Parsi Marriage and Divorce Act, 1936[30], and certain provisions of the Indian Succession Act, 1925 (Chapters III and IV). Illegitimate children are not included in inheritance in testate as well as intestate succession according to Parsi law.
There has not been any legislative or judicial reform in this regard, and the society still adheres to strict personal law principles that do not provide recognition or rights to children born out of wedlock.
CHAPTER 5: RECOMMENDATIONS
IMPLEMENTATION OF UNIFORM CIVIL CODE (UCC)
Enact UCC provisions or modify current personal laws to ensure equal inheritance rights for all children, regardless of legitimacy or marital status of parents. This would implement the directive of Article 44 of the Indian Constitution while ensuring substantive equality under Article 14.
JUDICIAL CLARIFICATION ON “CHILD” DEFINITION
The courts must provide interpretative guidance or directions to extend the definition of “child” under succession legislation so that it includes all legally recognized and biological children. This would reconcile differing interpretations between courts and legislation.
STATUTORY REFORMS IN CHRISTIAN AND PARSI LAWS:
Modify the Indian Succession Act, 1925 and Parsi personal laws to specifically confer intestate inheritance rights on children born out of wedlock. The reforms are called for to make these laws align with constitutional guarantees under Article 14 (Right to Equality) and Article 15 (Non-discrimination).
AWARENESS AND JUDICIAL TRAINING
Organize regular capacity-building workshops for family court judges and lawyers, focusing on child-centered jurisprudence. Courts need to be sensitized to implement justice principles and fairness over strict formalistic interpretations punishing children for circumstances outside their control.
CHAPTER 6 : CONCLUSION
The inheritance rights of children born outside marriage have traditionally been downgraded in all legal systems as a result of entrenched social and religious prejudices. Nevertheless, recent legal trends mirror an increasing acceptance that children should not be discriminated against because of their parents’ marital status. France, Germany, Japan, and South Africa are examples of states that have made great strides usually prompted by constitutional imperatives or judicial activism towards the provision of equal inheritance rights.
Conversely, countries like Nigeria and India still struggle with plural legal systems, where personal and customary laws at times reinforce inequality. Although India’s judiciary has been progressive, particularly under Hindu law, statutory reforms are largely missing in Christian and Parsi laws. Muslim personal law still limits inheritance from the father, although some judicial relaxation can be seen.
A consistent, rights-oriented approach needs to be ensured to end discriminatory practices and make succession laws comply with constitutional principles, especially Articles 14 and 15. Legislative change, judicial interpretation, and institutional awareness need to coalesce to establish equal dignity and legal recognition for all children irrespective of birth.
[1] Aparna Chandra, ‘Discriminatory Legacies: Illegitimacy and the Law in India’ (2015) 1(2) Indian Law Review 145.
[2] Barry Nicholas, An Introduction to Roman Law (Oxford University Press 1962)
[3] WS Holdsworth, A History of English Law, vol 4 (Methuen & Co 1924
[4] JDM Derrett, A Critique of Modern Hindu Law (Tripathi 1970)
[5] Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) arts 1–2
[6] Loi n° 72-3 du 3 janvier 1972 relative aux droits des enfants naturels (France).
[7] Loi n° 2001-1135 du 3 décembre 2001 relative à la reconnaissance de la filiation et aux droits des enfants naturels(France)
[8] Mazurek v France App no 34406/97 (ECtHR, 1 February 2000)
[9] Basic Law for the Federal Republic of Germany (Grundgesetz), art 3(1) (1949)
[10] BVerfG, Judgment of 15 November 1973 – 1 BvR 199, 304/72 (Germany)
[11] Levy v Louisiana 391 US 68 (1968
[12] Trimble v Gordon 430 US 762 (1977)
[13] Uniform Probate Code, 2-114 (1974)
[14] Civil Code of the Russian Federation art 1111 (1994
[15] Civil Code of Japan, art 900 (as amended by Law No 72 of 2013)
[16] Japanese Diet Amendment, Law No 72 of 2013
[17] Supreme Court of Japan, Case No 2009 (O) 1646 (4 September 2013).
[18] Constitution of the Republic of South Africa 1996, s 9
[19] Bhe v Magistrate, Khayelitsha 2003 (5) SA 247 (CC)
[20] Intestate Succession Act 81 of 1987, as amended by the Inheritance Laws Amendment Act 2003
[21] Matrimonial Causes Act 2004 (Nigeria)
[22] Olufunmilayo O Arewa, ‘Customary Law and Inheritance in Nigeria’ (2015) 59(2) Journal of African Law 1.
[23] Hindu Succession Act 1956, ss 6 and 8
[24] Hindu Marriage Act 1955, s 16 (as amended by Act 68 of 1976)
[25] Revanasiddappa v Mallikarjun (2011) 11 SCC 1.
[26] Muslim Personal Law (Shariat) Application Act 1937
[27] Mohammed Salim v Shamsudeen 2019 SCC OnLine Mad 16274.
[28] Indian Succession Act 1925.
[29] Jane Antony v Retna Raj (2009) 14 SCC 301
[30] Parsi Marriage and Divorce Act 1936.