Q. Recently my mother bought a plot of land from her personal earnings in Gujarat. My father had another wife who is deceased and in that wedlock I have a step brother. As I don’t have another brother or sister, can I get absolute right over the plot of my mother’s land? Does my step brother get any right in the property as my father is also alive?
The Hindu Marriage Act 1955, Section 16 explains about the illegitimate children and their rights to property. When a child is born to a man from his second wife then that child is half blood in relation to his first wives children. He/she can be called as step brother or step sister by the legitimate child. This has been explained under definitions clause Section 3 of Hindu Marriage Act 1955.
In Revanasiddappa & Anr vs Mallikarjun & Ors on (31 March, 2011) the Supreme Court headed by Justices GS Singhvi and AK Ganguly held in their judgment that a child born out of illegitimate relationship cannot be deprived of their property rights as it was considered in earlier days that cannot be followed in the present changing society. Many amendments have been made under state legislatures and by parliament which addresses such tricky issues that were kept under the carpet for decades. While interpreting Section 16 (3), the Bench said: “with changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. The concept of legitimacy stems from social consensus, in the shaping of which various social groups play a vital role.”Bench also observed that since social norms of legitimacy in the society is changing and what was illegitimate earlier need not be illegitimate today. Justice Ganguly, writing the judgement, said” Law takes its own time to articulate such social changes through a process of amendment. That is why in a changing society, law cannot afford to remain static”.
Eventhough the relationship between the parents are not sanctioned by law and society, child born under such a relationship should be considered independently. The child is innocent and is entitled to all rights that are given to child born from valid marriages. It is a Constitutional right that is given under law with regard to right to property and Article 300A guarantees it against deprivation of property right except by authority of law. Any child born out of void or voidable marriages can claim right to inherit his father’s property. But in case of mother’s self-acquired property, it devolves to her legal heirs i.e. her sons or daughters or she can gift it off to anyone as per her wish. In Kenchegowda v/s K.B. Krishnappa, (2 February, 2008), it has been held that “No child, whether legitimate or illegitimate, acquires any right by birth in the separate or the self-acquired property of its parents. Any right over such property comes only after their parents die without writing a Will. Section 15 of the Hindu Succession Act explains about the property inherited by a female Hindu will devolve to her sons and daughters. It has not clearly defined if it is self-acquired or ancestral property. With regard to your matter, you being her only legal heir will have absolute right in the property and not the illegitimate son of your father.
by Sushma Javare.