Lingappa Goundan and Another vs Esudasan

Upon the facts found by the Courts below, the question arising in this case is whether the Plaintiff, a minor, who has brought this suit by his

maternal grandmother as next friend, can claim maintenance out of the assets of his deceased putative father, a Sudra, the mother who was living in

concubinage with him being a Christian by religion. The first question to be considered is whether the Plaintiff''s claim is governed by the Hindu law,

and this, in our opinion, depends upon whether, by birth, ho was a Hindu or not. He, like his mother, is admittedly now a Christian and has been

brought up as such. But, if, by birth, he was a Hindu by religion, his change of religion would, of course, not deprive him of any right to

maintenance which, under the Hindu law, he may have against his putative father or his estate (Act XXI of 1850). The Hindu law lays down certain

rules for determining the caste of offspring of unions between parents belonging to different castes (amongst the four recognized main castes) and

gives separate names to the mixed castes to which such offspring will belong. In all these cases the Dharma or religious rites applicable to the

offspring are those prescribed for the mother''s caste (Brindavana v. Radhamani ILR Mad. 72 at p. 80. The Plaintiff, therefore, cannot be regarded

as a Hindu by birth, and he is, therefore, beyond the pale of, and not governed by, the Hindu law. There is no text of Hindu law, under which an

illegitimate son of a Hindu, by a woman who is not a Hindu, can claim maintenance, and in none of the reported cases has maintenance been ever

awarded to an illegitimate son who was not a Hindu by birth; and in the only reported case on the point (Addoyto Ghunder Bass v. Woojan

Beebee 4 Cal. L.R. 154 in which maintenance was claimed for the illegitimate son of a Hindu by a Muhammadan woman, the claim was

disallowed on the ground that such issue was not the offspring of a female servant, by the head male member of a family and also because the

illegitimate son was of a ""different race"" from the putative father.

The lower Appellate Court has upheld the Plaintiff''s claim for maintenance, not only by applying the Hindu law, but also on the ground that the

statutory provision made by Section 488 of the Code of Criminal Procedure recognizes the right of an illegitimate child to recover maintenance

from his father, that such right is not determined by the death of the father and that, on his death, his estate is chargeable with the Plaintiff''s

maintenance. No doubt, u/s 488 of the Code of Criminal Procedure, the Plaintiff was entitled to claim maintenance from his putative father, but

such claim could be enforced only during the life-time of the father and terminates with his death. In the case oft illegitimate children entitled to claim

maintenance under the common law, i.e., the personal law applicable to them, the statutory remedy given by Section 488 of the Code of Criminal

Procedure, will only be a cumulative remedy and will not take away the remedy under the common law to enforce such right by action brought

against the father during his life-time, or after his death, against his estate (Beckford v. Hood 7 T.E., 620 also Ramayyar v. Vedachella ILR Mad.

441 followed in Sattappa Pillai v. Raman Chetti I.L.R., Mad. 1. But in regard to illegitimate children who, like the Plaintiff in this ease, are not,

under the common law, entitled to claim maintenance from the putative father, the right conferred on them by the statutory law can be enforced

only by the particular remedy provided by the statute and to the extent therein provided (Doe. d. Bishop of Rochester v. Bridges 1 B. & Ad. 859

and Branson v. Municipal Commissioner for Madras ILR Mad. 389 Hardcastle on the ''Interpretation of Statutes,'' page 259, etc.; Maxwell, page

570, etc.

The Plaintiff, who can rely only on the statutory right, cannot, therefore, seek to enforce it by suit, nor does such right survive the death of his

putative father. The analogous statutory remedy provided in this case of bastards under the Bastardy laws in England (Section 71 of 4 and 5 Will.

IV, cap. 76; Section 4 of 35 and 36 Vict., cap. 65), can be availed of against the mother or the putative father, as the case may be, only in the

manner therein provided and not by an action at law, either during the life-time of the parents, or against their estate after their death.

The second appeal is therefore allowed and, reversing the decrees of both the lower Courts, the suit is dismissed. The question being a novel

one and the Plaintiff being a minor, we direct that each party bear his own costs throughout.