A child Born out of wedlock or of a void or illegal marriage is considered illegitimate. In other words, Illegitimacy can be defined as the status of being of illegitimate birth or of birth not according to law or state of being born out of wedlock or bastardy. The question of status and rights of illegitimates in a Hindu family can be considered from different aspects of the problem. For the sake of convenience and clarity we shall take up the following aspects and try to analyze the position both in the classical as well as the modern Hindu law.

slave, the wife of a slave or a sudra.' Prof Monier Williams describes 'Dasa' a servant or slave and 'Dasi' as a female servant or slave, servant maid, whore, harlot. There appears to be affinity between slavery and condition of a sudra. If we look to Colebrook's translation of the text of Yajnavalkya, we find his remarks that issue by a concubine is described in the law as a son by a female slave or by a sudra woman. If the father were a sudra he might have allotted a share to his illegitimate son.

Though slavery is banned and extinct now, but when slavery was prevalent, a female slave would be permanently attached to a family as a dependent member thereof, and a son begotten on her by male members would likewise be an inferior member. There are instances that such dependents female slaves were called concubines and living as members of the family of the man keeping them. Thus Colebrook has spoken of "son by a female slave or by a sudra woman," mean the son by a concubine. There appears to be some misconception when we refer to the right of an illegitimate son.

Brihaspati says :
The virtuous and obedient son, born by a sudra woman to a man who has no other offspring should obtain a maintenance and let the kinsmen take the residue of the estate.

Manu says :
A son begotten by a sudra or on a female slave or on a female slave of a slave, may take a share (on partition) if permitted (by the father), this is a settled law.

Yajnavalkya has said :
Even a son begotten by a sudra on a female slave may get a share by the father's choice, but if the father be dead, the (legitimate) brother should make him partaker of half a share, one who has no (legitimate) brother may take the whole, in default of (heirs down to) the son of daughters.

These texts are cited in Dayabhaga in Sanskrit language which is translated by Colebrook as follows :
But of a sudra a-son-by-a-not-married-female-slave or-the-like-sudra-woman, may share equally with other sons, by the father's permission.

Sir Willam Macnaughter's Hindu Law, the author gives his opinion that if the woman were not his female slave, the son begotten on her by him would have no right to the inheritance but only a claim to maintenance but this view is not accepted by other author's and the view in Dayabhaga is different where it is said, "Sudrasyan aparinita dasyadi, Sudraputra" which means the son born to a sudra, by an unmarried dasi or other sudra female, may share equally with other sons by consent, of the father.

Summing up the views of the various authorities and the authors, through the concept of inheritance, we find four situations:-

  (i) Illegitimate sons of a Hindu belonging to one of the three higher classes by a "Dasi"
  (ii) Illegitimate sons of a sudra by a "Dasi".
  (iii) Illegitimate sons of a Hindu by a Hindu woman who is not a "Dasi".
  (iv) Illegitimate sons of a Hindu by a non-Hindu woman.

Alternatively we can also infer as follows:-

  (i) The illegitimate son of a sudra is the son (putra) of a dasi, that is a Hindu concubine in the        continuous and exclusive keeping of his father at the time of his birth.
  (ii) He is not the fruit of an adulterous or incestuous intercourse.
  (iii) It is not necessary that his mother should remain a permanent concubine till the day of his father's        death.
  (iv) A Brahman mistress of a sudra does not become a sudra herself and their son is not a dasiputra.
  (v) It is not necessary that to constitute a woman a dasi that she should have not been a married        woman.
  (vi) She may be a widow when the illicit connection begins.
  (vii) She may even be a married woman when such connection begins, provided that in this case the         connection ceased to be adulterous when the son is conceived as where the husband dies before         conception.

Thus having traversed the area of Dasi and Dasiputra, it becomes incumbent to study Dasiputra in the General Hindu Law of sonship wherein 12 or 13 types of sons have been recognized ignoring totally the concept of "Nullius Fillius."

Manu has spoken 12 types of sons recognized under Hindu Law, though they have been treated differently so far as inheritance is concerned. Rather Aurasa son is the only primary son and all other sons are subsidiary. They are:-

 1. Him whom a man begets on his own wedded wife, let him be known to be a legitimate son of the      body (Aurasa) the first in rank.
 2. He who was begotten according to the peculiar law (of the Niyoga) on the appointed wife of a     dead man, of a eunuch or of one deceased, is called son begotten on a wife (Kshetraga).
 3. That (boy) equal (by caste) whom his mother or father affectionately give, (confirming the gift) with      (a liberation of) water, in times of distress (to a man) as his son, must be considered as an adopted      son (Datrima).
 4. But he is considered a son made (Kritrima) whom (a man) makes his son (he being) equal (by caste),      acquainted with (the distinctions between) right and wrong (and) endowed with filial virtues.
 5. If (a child) be born in a man's house and his father be not known, he is a son born secretly in the      house (Gudhotpanna) and shall belong to him of whose wife he was born.
 6. He whom (a man) receives as his son, (after he has been) deserted by his parents or by either of     them, is called a son caste off (Apa viddha).
 7. A son whom a damsel, secretly bears in the house of her father, one shall name the son of an      unmarried damsel (Kanina) and declare such offspring of an unmarried girl (to belong) to him who       weds her (afterwards).
 8. if one marries either knowingly or unknowingly, a pregnant (bride), the child in her womb belongs      to him who weds her, and is called (a son) received with the bride (Sahodha).
 9. If a man buys a (boy), whether equal or unequal (in good qualities) from his father or mother for     the sake of having a son that (child) is called a (son) bought (Kritaka).
 10. If a woman abandoned by her husband or a widow of her own accord contracts a second     marriage and bears (a son) he is called the son of a remarried woman (Paunarbhava).
 11. He who, having lost his parents or being abandoned (by them) without (just) cause, gives himself to     a (man) is called a son self given (Svayamdatta).
 12. The son whom a Brahmana begets through lust on a sudra female is (though) alive (parayan), a     corpse (sava) and hence called (Parasava), a living corpse.

Manu has brought all categories of children within the embrace of Hindu Law and considered them as family members but other slokas also speak of the distinction between the aurasa son and other sons when he says.

Among the twelve sons of man whom Manu, sprung from the self existent (svayambhu), enumerates six are kinsmen and heirs and six not heirs (but) kinsmen.

The legitimate son of the body, the son begotten on a wife, the son adopted, the son made, the son secretly born, and the son caste off, (are) the six heirs and kinsmen.

The son of an unmarried damsel, the son received with the wife, the son bought, the son begotten on a remarried woman, the son self given and the sudra female (are) the six (who are) not heirs but kinsmen.

The legitimate son of the body alone (shall be) the owner of the paternal estate; but, in order to avoid harshness let him allow maintenance to the rest.

Apastamba does not recognize or approve this kind of sonship as given by Manu and is vehemently of the strong view that "sons" begotten by a man who approaches in the proper season a woman of equal caste who has not belonged to another man and who has been married legally have a right to (follow) the occupation (of their caste) and (to inherit) the estate. If a man approaches a woman who had been married before or was not legally married to him, of belongs to a different caste, they both commit a sin. Through their (sin) their son also becomes sinful.

Vasishtha furbishes the old weapons and comes forward with a large array of Vedic texts and approved legal precedents. He appeals to immemorial customs and to the antiquity of the institutions of his time. According to Vasishtha, the application of eleven kinds of substitutes mentioned by Gautma and Baudhayana being condemned by Apastamba is not correct. This condemnation is unreasonable not disrespectful to the ancient sages. There are certainly twelve kinds of sons, there cannot be the least doubt about it. They are approved by the ancient sages. Thus, as propounded by Manu, Gautma laid down the law. Baudhayana supported him. Apasthamba attacked their arguments. Vasishtha advocated the law lay down by the former legislators as certainly true and there could be no doubt about it.

But we have to bear in mind that if there is any difference in the samritis, the view taken in Manusamriti shall prevail. So it can be safely concluded that there was no concept of "fullius nullies" in Hindu Law. Rather every type of son was recognized of approved though in matter of inheritance, a distinction has been kept between a legitimate and illegitimate son. Illegitimate sons in the three higher classes never take as heir but are only entitled to maintenance.

But if we look towards the Modern Hindu Law, we find some different view. Modern Hindu law has divided son into four categories:-

 (1) Son born in lawful wedlock. (It includes adopted son also)
 (2) Son born in void or voidable marriages.
 (3) Son born in invalid marriages
 (4) Son born out of wedlock.

Category (I):- It needs no comments. He is a legitimate child and class I heir as per Section 8 and Schedule I of the Hindu Succession Act, 1956.

Category (2):- Son born in void marriage is covered and the amended section 16 of the Hindu Marriage Act, 1955 which has completely superseded the Common Law doctrine that, "the offspring of a marriage which is null and void ipso jure is illegitimate". Firstly, it has declared that the status of such a child is legitimate. Secondly, it recognizes his right in the property of the parents and not others. Thus though the provision is benevolent, it is still a bit discriminatory as, such a child is not vested with full property rights as the use of expression in section 16(3) of the Act "other than the parents" limits his rights to property. Similar case is for voidable marriage and the son born in such marriage is legitimate and has a right to property (though limited) under section 16(3) of the Act.

Category (3):- Children born in a wedlock, which is invalid, are not covered by a statutory provision. If there is a violation of section 5(iii) or section 7 or section 15 of the Hindu Marriage Act 1955. The marriage is neither void nor voidable and as such is not covered by section 11 or 12 and consequently not covered by section 16 of the Hindu Marriage Act, 1955.

However, judicial pronouncements had made the task easy. In Smt. Charncha Mohini Srivastava v. Avinash Parshad Srivastava the point agitated was that the marriage solemnized when the special leave petition was pending in the Supreme Court against the High Court granting divorce; is void. The Supreme Court discussed the question of marriage in violation of section 15 of the Hindu Marriage Act is invalid and not void. However, the Supreme Court said:-

We need not consider the question as to whether the child born to the new wife would be legitimate or not, except to say that in such a situation section 16 of the Act may come to the aid of the new child.

Thus according to this decision two points have come forth:-

(1) Marriage in violation of section 15 is invalid.
(2) Child born of such invalid marriage is also covered by section 16 of the Act.

Section 16 of the Hindu Marriage Act, 1955 was agitated in P.E.K. Kalliani Amma v. K. Devi. Though the question pertained to the second marriage under Kerala Joint Hindu Family System (Abolition) Act 1976 and Marumakkattayam Act, 1933, arose, the provision of section 16 of the Hindu Marriage Act, 1955 was also discussed. The Supreme Court was of the view that section 16 of the Act by virtue of the use of the words "notwithstanding that a marriage is null and void under section 11," has made section 16 delinked from section 11 and that section 16 shall operate with full vigour inspite of section 11 and that section 16 stands on its own strength and operates independently of other sections. Section 16 contains a legal fiction. It is by a rule of "fictio juris" that the legislature has provided; that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage is void or voidable.

By this ratio decidendi, violation of Section 7 of the Hindu Marriage Act, 1955, shall not turn the children born as illegitimate and as such shall have a legal shelter under Section 16 of the Act.

Category (4):- In this category the rights of illegitimate children to succeed to their mother's property has been preserved and recognized but not to the father's property. On the other hand, the illegitimate son of a person by a continuously kept concubine who had a right to inherit his father's property is now denied that right. This is covered by section 3(1)(j) of the Hindu Succession Act, 1956 wherein it is stated that illegitimate children shall be deemed to be related to their mother and to one another ... and in Gurbachan Singh v. Khichar Singh it is said that though ordinarily illegitimate children are not considered as children, yet in so far as relationship with one's own mother is concerned, even illegitimate children are considered as her children by virtue of the proviso to section 3(1)(j).

Thus the present position of an illegitimate son is quite contrary to what Manu and Yajnavalkya have stated.

CRITICAL APPRAISAL:- As discussed earlier it is vividly clear that though the legitimate son (aurasa) was desired both for spiritual benefit as well as for the continuation of the family, the Aryans recognized at the same time twelve or thirteen types of sons. Though different versions are given for the recognition of various kinds of sons, it is not malapropos to say that whatever may be the motive, the Aryans never wanted the man to die sonless. It can be inferred from the Smritis prohibiting the adoption of an only son. Vasistha and Baudhayana say, "Let no man give or take an only son as he must remain for the obsequies of this ancestor." Nanda Pandita says that the offence of extinction of lineage, denounced by Vasistha is incurred by both giver and receiver. To read it with Manu "To three (ancestors) water must be offered, to three the funeral cake is given... ." It is clear that a son is needed for spiritual merit. The Aryans in this regard used abundant caution to see that in case there is failure of a son as the son delivers (trayate) his father from the hell called Put, so the son was given a social status, religious and legal recognition. The basis was the spiritual merit and not the property right consideration.

In the present legal setup, clearly the law is framed with secular and materialistic approach where religious or spiritual merit is secondary and basis is the conferment of property right. The law now is materialistic in concept. Aurasa son is class I heir and has full property rights. Legitimated son has right to property only of the parents and not of others. The illegitimate son shall inherit from mother only. So the present law is based on the theory of right to property and ignored the social status of the child. It has fragmented the child ignoring Hindu Social mores.

It is never too late. A time has come for a change in outlook that the present must be built on the edifice of the past and not to sacrifice it. Our glorious traditions cannot be ignored. Do not fragmentize the child into legitimate child, legitimated child and illegitimate child, because so long as little children are stigmatized and allowed to suffer there is no true love in this world. We must have a pragmatic legal approach and adopt measures so that the bastardization of the child does not find place in any statute book.