Is a Hindu bound to maintain his illegitimate children and under what conditions?

Hindu Law's Foundational Approach to Illegitimacy

Hindu law, unlike Roman or English common law, never treated an illegitimate child as a filius nullius — a child of nobody. Even the ancient texts, while according an inferior status to sons born outside lawful wedlock, never relieved the putative father of the responsibility to maintain them. The principle underlying this approach was one of responsibility: the person accountable for the birth of a child must provide for its maintenance, regardless of the circumstances of the child's birth. As Brihaspati put it in the Shastric tradition, a man may give away only what remains after the food and clothing of his family — to leave one's dependants destitute, even in the pursuit of a meritorious act, was considered a wrong of the gravest order. It was natural, therefore, that the duty of maintenance was extended not merely to legitimate children, but to illegitimate ones as well — including those born of casual, adulterous, or even incestuous intercourse.

The Classical Law: A World of Distinctions

Before the Hindu Adoptions and Maintenance Act, 1956 brought uniformity to the subject, the classical law drew careful distinctions based on the class of the father and the status of the mother. These distinctions are important to understand, since they formed the baseline that the 1956 Act either modified or swept away.

The classical law classified illegitimate sons under four heads. First, the dasiputra — the illegitimate son of a Hindu of the three higher classes by a permanently and exclusively kept concubine (dasi or avaruddhastri) — occupied the most recognised position. Under the Mitakshara school, such a son was treated as a member of his father's family and was entitled to maintenance for the whole of his life — not as a compassionate allowance, but as a matter of right flowing from his status as a family member. The Supreme Court, in Mohte Anja Ratna v. Koney Narayana Rao (AIR 1953 SC 433), affirmed that such a son's claim was not merely one of charity but of recognised legal standing. In the case of a dasiputra of a Sudra, his position was even more favourable — he could inherit a share in his father's separate property after the father's death, and, during the father's lifetime, was entitled to maintenance both from the separate estate and from the joint family property of which the father was a member. The Privy Council, in Vellaiyappa Chetty v. Natarajan (AIR 1931 PC 294), confirmed that such a son was entitled to maintenance for life out of the joint family property, which could be secured as a charge on the estate.

The third category covered illegitimate sons born of casual or adulterous intercourse by a woman who was not a dasi. These sons too had a claim to maintenance — during the father's lifetime from the father directly, and after his death from the father's separate property and, failing that, from the joint family estate. However, crucially, this right was personal to the son and did not descend to his offspring. If such an illegitimate son himself died leaving children, those grandchildren had no claim to maintenance out of the putative grandfather's estate. The Allahabad High Court in Roshan Singh v. Balwant Singh (27 IA 51) clearly settled this principle. As between the Dayabhaga and Mitakshara schools, there was one important difference: under the Dayabhaga school, the right of this class of illegitimate son to maintenance ceased on his attaining majority, while under the Mitakshara school, the right extended throughout his life.

The fourth and least favoured category was the illegitimate son by a non-Hindu woman. Under the classical Hindu law, such a son had no right to maintenance at all under Hindu personal law. His only remedy lay under the provisions of the Code of Criminal Procedure, which could only be enforced during the lifetime of the father and not against his estate after death.

As for illegitimate daughters, the classical texts were largely silent, and several High Courts held that no right of maintenance existed for them under Hindu personal law, since the texts used the masculine sudraputra and were not construed to extend to daughters. Here too, the Code of Criminal Procedure offered the only recourse.

The Modern Law: Section 20 of the Hindu Adoptions and Maintenance Act, 1956

The Hindu Adoptions and Maintenance Act, 1956 swept away all these distinctions in one clean statutory stroke. Section 20(1) declares, in terms that admit of no ambiguity: a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children. Section 20(2) then specifies the extent of this obligation — a legitimate or illegitimate child may claim maintenance from the father or mother so long as the child is a minor, that is, until the completion of eighteen years of age.

Three important consequences flow from this provision. First, the obligation is now cast equally on the father and the mother — it is no longer exclusively a paternal duty. Neither parent can escape the obligation by claiming that the other has assumed the responsibility. Second, the obligation is personal and absolute in character — it arises from the bare fact of parentage and does not depend on the possession of any property, ancestral or self-acquired. Third, maintenance as defined in Section 3(b) of the Act includes provision for food, clothing, residence, education, and medical attendance and treatment. A claim for maintenance under the section can be made even by an illegitimate child born of adulterous intercourse or of a void marriage, as the courts have expressly confirmed.

One significant change effected by the Act deserves special mention. Under the classical law, a dasiputra of the higher classes was entitled to maintenance for the whole of his life, whereas a dasiputra of a Sudra could inherit a share. The Act has standardised the position — all illegitimate sons and daughters, irrespective of class or the status of the mother, are entitled to maintenance only during minority. The extended life-long right of the dasiputra under the classical Mitakshara law has thus been abridged. As one authority observes, the position of the dasiputra has, from the standpoint of maintenance, actually deteriorated under the modern law, though the larger purpose of the Act was to equalise and protect.

The Condition: Minor Status is the Limit

The governing condition under modern law is unambiguous — the right of an illegitimate child to claim maintenance from the parent lasts only during minority. Once the child attains the age of eighteen, the entitlement ceases, and the father is not bound to maintain a major illegitimate son. The courts have consistently held that the obligation of a parent to maintain the child ceases on his attaining majority, even if the child is temporarily incapable of maintaining himself due to illness — though if the disability is of a permanent nature, it has been submitted that the spirit of Hindu law would sustain the obligation.

After the Father's Death: The Right as a Dependent

The right of an illegitimate child does not perish with the father. Under Section 21 of the Act, which defines the dependants of a deceased Hindu, an illegitimate minor son is expressly included, as is an illegitimate daughter so long as she remains unmarried. Where the father has died and his estate devolves upon his heirs, those heirs are bound under Section 22 to maintain these dependants out of the estate they receive, in proportion to the share each takes. The obligation is, as always in the case of dependants, one that attaches to the estate and not to the person of the heir — it is not a personal liability but a charge flowing with the inherited property. An illegitimate child seeking to enforce this right must, of course, not have obtained any share in the deceased father's estate by testamentary or intestate succession; if the child has already inherited, the claim for separate maintenance as a dependant does not arise.