What is the right of an illegitimate child against his putative Muslim father? Explain and refer to relevant case law.

Question: What is the right of an illegitimate child against his putative Muslim father? Explain and refer to relevant case law. [BJS 1987]

Find the question and answer of Muslim Law only on Legal Bites. [What is the right of an illegitimate child against his putative Muslim father? Explain and refer to relevant case law.]

Answer

In Muslim law, the illegitimate child has no right to inherit property through the father and in 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 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 the 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, AIR 1959 Ker. 319, J. held,

"Mohammadan law seems to force no weight upon the regular dad of an ill-conceived 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.

In the present case, the question before the court was whether an illegitimate child has a right to inherit the property and claim maintenance from her putative father.

The child was born to a Muslim father and a Hindu Mother. On deciding the question of whether the child is entitled to inherit the property of her putative father and whether she is entitled to claim maintenance, the court held that the illegitimate child is not entitled to maintenance as Mohammedan law imposes no burden upon the putative father to maintain the illegitimate child. The illegitimate child is only entitled to be maintained by his/her mother under the Hanafi law otherwise even under Shia law the illegitimate child cannot claim maintenance. The court held the same for the right to inherit or succeed to a property of the parents that the illegitimate child is only entitled to inherit the property of her mother that too under Hanafi law.

However, under Shia Law, the child of an imprecated mother inherits the property from his mother. Thus it seems that the Muslim law doesn't accept the concept of illegitimacy and for an illegitimate child, there exists no father, the child claims maintenance if any under the Hanafi law from his/her mother, and there exists a corresponding right of inheritance between the illegitimate child and his/her maternal relations.

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 a 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 an 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 in Rahmat Ullah And Ors. v. Maqsood Ahmad, AIR 1952 All 640, 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 the 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 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 a 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 mother. Hanafi law does not recognize this distinction. The child of fornication and imprecation are both regarded as illegitimate and inherited from the mother's side.

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