Illegitimacy under Hindu Law: A Case for its Abandonment

Abstract

Abstract Under Hindu law, while anciently an illegitimate child was not an alien to his kin as under Common law, the position under the codified Hindu law stood altered, likely as a consequence of the English influence during the colonization of India. This paper, critiquing the treatment of illegitimate children under Hindu law traces the historical link between legitimacy and marriage, and its legal and sociological basis. This link has been perpetrated across societies, over time, and through legal and moral media, and has also been justified by sociologists as a means to preserve the society, by preserving its fundamental constituent – a normative family. The Indian State machinery (courts, the government and the legislature) too suffers from an anxiety to protect the normative family (barring notable exceptions), and has been dismissive of any alternative, notwithstanding that the rights of illegitimate children is the collateral damage. Regardless, today this distinction contravenes the constitutional safeguards in India. More importantly, with the acceptance of novel reproductive techniques (such as artificial insemination), and familial setups (same-sex relationships), the sociological basis for the preservation of this distinction has become irrelevant. Accordingly, this paper argues for this distinction to be removed from the statutes, which would benefit all the three stakeholders relevant to the illegitimacy equation, namely, the unwed father, the mother, and the child.