Report No. 83
6.78. Illegitimate children.-
For example, in the case of an illegitimate child, the assumption under lying section 19(b) totally breaks down. The reason is that the father has no legal right of guardianship over such a child. This was the position under uncodified rules of Hindu law1 and is also the position under its codified version.2 In Muslim law also, the position is the same. In fact, the right of the mother to custody can be enforced by habeas corpus.3
The position was settled long ago4 in India for persons of both the communities. So long ago as 1864, Holloway J. made the following observations:5
"All the analogies of Hindu law, as we have already shown, are against the view of a bastard taken by the law of England. There is an element in that law, the doctrine of Christianity, which would render any argument drawn from its provisions merely deluding. There is, and can be, no analogy."
In the case of persons of other communities also, there is fairly recent authority6 specifically holding that the mother is the natural and legal guardian of the illegitimate child.
1. Mahabir v. Raghubar, AIR 1933 Oudh 312 (313).
2. Section 6(b), Hindu Minority and Guardianship Act, 1956.
3. Gohar Begum v. Suggi, AIR 1960 SC 93.
4. (a) Saithri (in re:), 1891 ILR 16 Bom 307 (317);
(b) Venkamma v. Savitramma, 1888 ILR 12 Mad 67 (68);
(c) Shahjehan v. Munro, 5 SDA NWP 39.
5. Mayna Bai v. Uttaram, (1864) 2 MHCR 196 (203).
6. Pamela v. P.C. Martin, AIR 1970 Mad 427 (428, 429), paras. 5 to 7 (Anglo-Indians).