The laws on social issues in the Hindu religion - marriage, succession, and guardianship -- were framed in 1956. Various amendments have been effected by Parliament and state legislatures from time to time to address prickly issues which surfaced after being kept under the carpet for years being viewed as uncomfortable.
One important amendment was carried out in 1976 to Section 16 of the Hindu Marriage Act, 1956, conferring the right of inheritance to the father's property on children born out of void or voidable marriages, whether or not so declared by a court of law.
But marriage, be it void or voidable, between a man and woman was a pre-condition to bestow right on their progeny, even if illegitimate in the eyes of society, to lay claim over the father's property.
The Supreme Court in Jinia Keotin vs Kumar Sitaram Manjhi [2003 (1) SCC 730] said, "Section 16 of the Act, while engrafting a rule of fiction in ordaining children, though illegitimate, to be legitimate, notwithstanding the marriage was void or voidable, chose also to confine its application, so far as succession or inheritance by such children is concerned, to the properties of the parents only."
This means, a child born out of a legally invalid marriage could claim the right to inherit his father's property alone and not lay inheritance right over ancestral property, which legitimate children could.
What happens to children born from live-in relationships, where no marriage has taken place? The Supreme Court had presumed a man and woman to be married despite them only having a live-in relationship if they lived for a very long time under one roof and were known in society as husband and wife.
In S PS Balasubramanyam vs Sruttayan [AIR 1992 SC 756], the SC had said, "If a man and woman are living under the same roof and cohabiting for several years, there will be presumption under Section 114 of the Evidence Act, that they live as husband and wife and the children born to them will not be illegitimate."
The crucial pre-conditions for a child born from a live-in relationship to be not treated as illegitimate are that the parents must have lived under one roof and co-habited for a considerably long time for society to recognize them as husband and wife. It must not be a "walk in and walk out" relationship, as the court pointed out in its 2010 judgment in Madan Mohan Singh vs Rajni Kant.
But the court has not yet answered about the right of a child born out of such a "walk in and walk out" relationship where a DNA test proves the biological relationship between the child and the father though the mother was in a subsisting legal married relationship with another man.
Even if one applies the 1976 amendment to Hindu Marriage Act in the widest possible amplitude, even then the mother of the child must first claim marriage or sufficiently long relationship, without her having access to any other man, for the law to bestow right of inheritance on the offspring to the father's property.
However, the law, Section 125 of the Criminal Procedure Code, has taken care that no legitimate or illegitimate child is left unattended by the biological father. It says that a man must maintain his legitimate or illegitimate child and cast an obligation on the biological father if his offspring is without any means of sustenance.
It is difficult to lay down a law in this regard without causing some social turbulence. Take for example a reverse scenario. A child of a happy marriage grows up and inherits his rich father's property. At that point of time, an outsider turns up and claims that he was the biological father, and to prove that demands a DNA test.
Should the court order it? If the tests prove positive, proving the indiscretion on the part of the mother, what happens to her happy marriage? What could be the impact on the father, who is robbed of his years of parenthood by a scientific test? And what is the duty of the child towards his biological father with whom he might never have had interacted?
Section 125 of CrPC confers a duty on the child to maintain his biological father or mother and it does not absolve a married daughter of this responsibility [Dr. Vijay Mohan Arbat vs Kashi Rao Rajaram Sawai 1987 (2) SCC 278].
To escape all these social complications in an already complex human relationship, the Supreme Court had decided to keep it straight as far as possible after discussing the impact of DNA test results on married couples and their children.
In the Kamti Devi case [2001 (5) SCC 311], the SC said, "The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Evidence Act, for example, if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness of law would remain unrebuttable."
"This may look hard from the point of view of the husband who may be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case, the law leans in favor of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception."