JUDGMENT
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, he 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 caste) (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(1)]. 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 no 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 Chunder Dass… v. Woojan Beebee…. ] 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 Criminal Procedure Code 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, under section 488 of the Criminal Procedure Code. 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 of 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 Criminal Procedure Code, will only be a cumulative remedy and will not take away the rimedy 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 (2), also Ramayyar v. Vedachella (3) followed in Sattappa Pillai v. Raman Chetti (4). But in regard to illegitimate children who, like the plaintiff in this case, are of, 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 (5) and Branson v. Municipal Commissioner for Madras ]. 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 & 5 Will. IV, cap. 76; section 4 of 35 & 36 Vict., cap. 65), can he 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.