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Journalism of Courage
A child can never be illegitimate. Because his relationship with his mother and father is independent of the legal validity of the relationship between his parents. This is a settled principle of law,declared in judicial pronouncements while determining issues connected to rights of maintenance,inheritance and succession of children,born out of marriages or void and voidable marriages. The Hindu Marriage Act,Succession Act and similar legislation also speak on rights of children who are allegedly illegitimate in the wake of invalid marriages.
But legal experts say that the Delhi High Courts declaration that a DNA test has revealed N D Tiwari is the biological father of Rohit Shekhar can open up a virgin area of jurisprudence since no legislation talks unequivocally about a persons right over his fathers properties,ancestral or self-acquired.
Most experts believe that the legislation concerned dates back to a time when scientific evidence like DNA test was not available to prove paternity of a person and a childs legitimacy was relatable only to his mother. Many are of the opinion that existing laws impose massive restrictions on a persons property rights in such cases and a purposive interpretation coupled with an attempt to amend existing laws and codify certain general principles of Hindu laws may show the way.
I dont think a child in such a case can assert any right. The case may have no legal ramification at all even if the DNA report is accepted by the court and a decree of declaration is passed. If a childs mother has not made any claims regarding her marriage valid or invalid in the eye of law no provision of Hindu Marriage Act or Succession Act shall apply and the child will be left with no remedy under the law over his fathers properties, said senior advocate K T S Tulsi.
He said while self-acquired properties can be dispensed with by a man executing a will in favour of anyone,a share in ancestral properties will depend on the claim of marriage between his parents.
Senior counsel Pinky Anand,however,cited a 2010 Supreme Court ruling and said while it is well-settled that a child born of void or voidable marriage is not entitled to claim inheritance in ancestral property,he is entitled to claim a share in self-acquired properties,if any.
Interestingly,this judgement was passed in a case pertaining to a live-in relationship. While the law may not be very vocal on the subject,it is clear that such a child may resort to legal proceedings to seek his share in his fathers self-acquired property if the latter dies without executing a will. Although such a child will not be a Class-I heir and children born out of valid wedlock will have the first charge over the fathers properties,he can legally ask for a share, Anand said.
Concurring with this opinion,senior advocate Aman Lekhi said that a child can,in accordance with general principles of Hindu laws,ask for maintenance from self-acquired properties of his father and a share can be procured in this manner.
In the present case,there is also another caveat. The court is yet to pass a decree of declaration and an aggrieved party can challenge the authenticity of the test by claiming flaws in analysis of blood samples etc. However,there is always a presumption in favour of truthfulness of such medical examinations conducted under the close scrutiny of the court and a persons conduct of remaining elusive,like in the present case,shall also be relevant, he said.
Senior advocate Lalit Bhasin said there was need for purposive interpretation in such cases since the law requires changes in the current circumstances when scientific evidence have made possible several propositions that were beyond the reach of the lawmakers of old times.
In the present case,there will be no right of inheritance since there was no marriage. The child will have to lead a legal battle if he claims share in his fathers ancestral properties. There is certainly a vacuum of specific legal provision, Bhasin said.
Rohit Shekhar,however,is ready to set another precedent. Asked if he would assert his rights in Tiwaris properties,he said he will ask for whatever is his legal right.
I know the law is not clear on a persons property rights in such cases. But one should not forget when I filed this suit for declaration of my paternity,I had no Indian case laws to my assistance and,if required,I will fight another battle to make another exception, he said.
