custody Rights of an Illegitimate Child
Illegitimate means “something which is contrary to law”, the children are those that were not born to married parents. Even the statute has discriminated against them in certain cases and virtually any direction. Also, with the arrival of citizens who are forward-thinking who broad-minded and don’t think of illegitimacy as a moral disgrace, the legislation can be modified accordingly. In family law, child custody describes lawful guardianship over a minor child. the care of their children is a critical issue for the women in abusive relationships Women have to live in terror of losing their children and bear all manner of abuse to prevent change.
“There are no illegitimate children-only illegitimate parents”- Hence, Leon R. YANKWICH Keeping in mind the secularism in India, a few of traditional customs are often put into place to make sure all the diverse faith communities have fair standing. Family law deals with people who are underage and who are really the family’s own, as well as those who are not. When it comes to an “illegitimate” child, Hindu law says the mother is the first natural guardian and the only exception is if she were to cease being a Hindu or renounce the world. In family law, child custody describes lawful guardianship over a minor child. The right to custody of their children is an important consideration for mothers who are exposed to domestic violence Often women put up with much ill treatment as a result of their fear of losing their baby, as a vicious cycle is maintained through fear of legal action.
In India, primarily the child custody cases are governed by the following acts and laws:
1. Guardians and Wards Act, 1890
2. SECTIONTION 38 of Special Marriage Act,1958
3. SECTIONTION 26 of Hindu Marriage Act,1955
4. Hindu Minority and Guardianship Act, 1956
5. Hindu Adoption and Maintenance Act, 1956
6. Custody under Muslim Personal Law (SHARIYAT)
(A) Concept of Illegitimacy
The word “bastard” in mediaeval Wales denoted a “an illegitimate infant,” and “bastard” meant a “a child that is not RECOGNISED by its father.” Regardless of the sex of the infant, RECOGNISED or not, the parent has the same property rights when the child was born, it is essential that any child benefit from his estate when he dies. Wales was then became subject to English rule after England had conquered Wales.
(B) Research Methodology
The methods used in this research are secondary methods, which include articles, blogs, books and newspapers. Internet blog posts and articles are an essential part of the research. The conclusion drawn are carefully interpreted on the basis of collection of data from different secondary sources.
Family law in India is primarily enforced and administered by civil and statutory codes. The rules for illegitimate children with regards to land, succession, maintenance, guardianship, and adoption are drastically different than those for those in the community are almost as varied, if not more. An illegitimate child, however, receives greater inheritance than an illegitimate one who is raised in the faith, as a personal laws that governs Muslims has provisions for it does not specify illegitimate children. Although personal laws like those concerning wives, children, and parents have fallen by the wayside, the non-religious code sections of the CrPc, like Section 125, 1973, also fill the void and provide an appropriate legal remedy for all illegitimate children, whether they are born to parents of one religion or another.
Mother’s Rights under Hindu Law-
If you are a Hindu, then you would be governed by the Hindu Minority and Guardianship Act, 195 and these are the enactments applicable to a mother who belongs to Hindu, Buddhist, Sikh or Jain by religion. Children under the age of five are typically assumed to be with their mothers. Section 6(a) of Hindu Minority and Guardianship Act, in India deemed the age limit to be five years old and under Section 19(b) of Guardians and Wards Act the limit was eighteen years old.3 The Guardianship and Wards Act was modified to ensure that mother and father had equitable custody access to their children in the event of a power of attorney. It was also rendered very clear in the case of Roxann Sharma v. Arun Sharma4 that any stipulations of the law do not apply to an infant after the age of five years. In other words, child custody would be dependent on the child’s needs. If the kid is over the age of nine, the decision is theirs. Custody would not be offered to the mother if it is proved that she has abused or neglected the boy.
III. RIGHTS OF AN ILLEGITIMATE CHILD
Hindu Adoptions and Maintenance Act, 1956, requires those under its purview to financially support their underage children before they are able to do so themselves. It is now the responsibility of both parents to support their illegitimate offspring. An illegitimate son has as well as an illegitimate daughter a right to support from his parents. The right to be protected as a minority, however, stops at that stage. When a child ceases to be dependent on his or her parents for financial support, the child is no longer entitled to his or her parents’ resources. Such a child cannot be considered a member of the religion even though he or she has converted to another faith.
Once the Hindu Succession was in force, (passed in 1956), an illegitimate son or daughter was disallowed from inheriting the property of his or her father or mother, regardless of the caste. A man born out of a Shudra, even though it was through an unorthodox method, was entitled to become the successor of his parent. as a result of the Act, he is not able to. • Joint Family Property and Partition:
Prior to the passage of the Hindu Succession, an illegitimate son inherited his father’s property and proceeded to enact a division of it when the rightful son died. Thus, as he will not replace his father as a third cousin once removed, by the rules of kinship he is not qualified to succeed him.
Mother’s place is known to be in the care of raising the child. Now, if the parents of an illegitimate child are both Hindus, if the Act of 1956 applies, and in that case because under section 6, it’s said the father is followed by the husband if the father and husband aren’t both the mother. In the case of an unmarried girl, father takes precedence. If an illegitimate boy is brought up in a community or a Sikh girl was married and brought up in her husband’s tribe, he’s the father; as with a married girl, husband comes before father.
According to the United Nations’ Convention on the Rights of the Fetus, the best interests of the child is the starting point of Indian domestic law. Acknowledged in the UN Convention on the Interests of the Child when deciding on the custodial rights of the baby. The custody orders are interdependent. Whether the girl is content with her new custody arrangements, she will not be separated from her offspring. Even if the whole panchayat (guru) and anyone in the locality insist on it, it would be impossible to compel the mother to give up custody of her boy. Under no obligation to comply with either child care or protection order, a survivor under state domestic violence law should instead takes the matter to the relevant courts.