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Written by - Nandini Srivastava
Introduction to Illegitimacy
Illegitimacy is derived from a Latin phrase according to which the meaning is “not in accordance with law”. Therefore illegitimate child is someone who is born out of lawful wedlock where apart from just the society, the law does discriminate against them but since the emergence of liberal thinking people according to whom the illegitimate children are not considered as a disgrace, there are amendments taken place accordingly. The idea of illegitimate child is determined by the status of his parents according to their marital relationship of the parents and is considered nullius filius which means having no legal relationship with the parents. There are two factors which determines the illegitimacy of the child, and they are:
Status of the relationship of the parents, whether legal or not.
Marital relationship of the parents.
According to Oxford dictionary illegitimate child is “born of parents not lawfully married”. So it can be related to premarital sexual relationship or extra marital sexual relationship which brings out pregnancy, is recognised as sin and is considered as offensive in today’s world. All the personal laws which are based on religion and therefore as referred to all the personal laws, the child born out of wedlock who is considered as illegitimate is not given equal rights in the eyes of personal laws. They have been recognised as under different heads altogether so concerning them as equal to all other children in terms of joint family property, maintenance, inheritance, guardianship.
History and Present
Since the medieval times, Europe, America and some parts of Britain allowed to give rights to the illegitimate children who were born out of lawful wedlock in the terms of maintenance and no inheritance. In ‘Wales’ an illegitimate child was known as ‘bastard’ who was not recognised by his father, or the father had chosen not to recognise him. The children who were born out of lawful wedlock and were recognised by the parents were given same legal rights and the right to share the property. The law of England post the conquest started to apply in the Wales too. However the laws have seen to get amended from the 20th century which have made various jurisdictions realise that the illegitimate children should be treated equally with the legitimate children and should not be discriminated against, possessing no fault of their own in their birth.
There has been no justification for these laws to exist ethically, but the ill treatment of illegitimate children has brought immense need of condemning the discriminating of the jurisdictions and laws which apply to illegitimate children.
India recognises the legitimacy of children under various provisions of law where a child perceived through the process of reproduction during the process of valid marriage or during 280 days after the dissolved marriage provided that the mother shall remain unmarried during the birth will be allowed to remain a legitimate child.[1] During the time of a DNA test, the presumption of the child considered illegitimate is replaced. The case of NandlalWasudevBadwaik v LataNandlalBadwaikargues upon the legitimacy of their so called biological daughter which was later confirmed that she is not begotten by her father according to the DNA test. The Thirumathi Ramayammal case talks about the provision of illegitimacy wherefore it is important that the child born during the period the marriage is carried on, is the proof of the legitimacy of the child and the only thing that can deny the aforesaid argument is that the parties of the marriage do not have access to each other while the child could have been procreated. [2]
The DNA which is considered as the most accurate test had cleared that the appellant was not the biological father of the girl but at the same time the condition of Section 112 of Evidence Act are established for the child to remain legitimate. This condition as observed above has one more condition that the child must have been observed in the valid marriage, yet in the process of void marriage or voidable marriage, there shall be a probability that there must not be any recognition to the child as legitimate in the personal laws of thy parents.
Maintenance of illegitimate children under different personal laws in India
Hindu Marriage Act of 1955 got amended in the year 1976 wherefore it brought changes in the recognition of illegitimate children and not just remain constant to children born out of lawful wedlock. In one of its amendment it made section 16 of the act where the child would be considered legitimate if the manner if the marriage of the parents was dissolved instead of annulment. Thence in the process that the child should get the degree of nullity of the marriage, the child was regarded as illegitimate and would be avoided from certain inheritance rights. The provision got amended in the case of Thirumathi Ramayammal v. Thirumathi Mathumal:
“Though the language of the section is more appropriate to voidable marriages, it has been applied to void marriages as well, presumably with the object of ensuring that where a marriage was in fact solemnised but was void for any of the grounds mentioned in Section 11 the children of such marriage should not be bastardised whether a decree of nullity is passed or not”[3]
Post 1976 the Marriage Laws Amendment Act, the child born from a void marriage or voidable marriage shall be considered as legitimate child in the same way as he/she was known to be in a valid marriage even post the degree of nullity has not been taken by the parents.
The Muslim law, as far as the terms of illegitimate children are concerned, gives no acknowledgement to the children born out of wedlock in terms of inheritance, maintenance, guardianship. They are referred to as ‘ZINA’ – which means illicit sexual relations who do not consider themselves to be lawfully married but the relationship happens wilfully. According to Tyabji in Mohammedan law, the Muslim law does not obliges the father to be burdened by the natural child. Yet the Hanafi’s, the child born out of wedlock is considered to be illegitimate and obliges the mother to take care of the child, although the father is set free from all the duties of the child regardless of it being Sunni, Shia or Shite sect. Further Muslim law acknowledges three kinds of marriages which are: Valid, Irregular and Void. The position of child who is born out of irregular marriage is known to be legitimate but the child born out of void marriage is considered as illegitimate and not regarded any inheritance or maintenance or guardianship.[4]
The Christian law, also does not acknowledges the concept of illegitimate child and does not provides any status or recognition to the child. The provisions related to illegitimate children born out of void and voidable marriages are recognised in the Indian Divorce Act 1869, where in a similar manner the status of lawful children in the case of Hindu and Muslim law have been granted legitimacy in Christian Laws under this Act. Yet in the terms of legitimate children born from a lawful wedlock, only those children who have been born from a lawful wedlock which has been annulled on the grounds that the former spouse was in the living state and the other marriage which contracted in good faith and the former spouse was dead in the present state on the grounds of insanity, the child is known to be legitimate and has a share in the parent’s property.
The Hindu Adoptions and Maintenance act 1956, governs the maintenance of illegitimate children under which the describes a ‘dependent’ as the illegitimate son who is a minor and an illegitimate daughter as a person who is unmarried. The act states further that a male or a female who has an illegitimate daughter or a son is bounded under the duty to maintain their daughter or son or as well as children.
On the contrary no such duties are placed on the Muslim parent having an illegitimate daughter or son or children. Ergo, free from the maintenance rights and financial support their illegitimate children. Yet in the Hanafi Law, the women is supposed to take care of her legitimate as well as her illegitimate child, the man in contrary is set free from maintenance or rearing the child under the Muslim Law. The father however is not completely free in this case, he is not prevented from maintenance of his illegitimate child under section 125 of CrPC. The case of NafeesAra vs Asif Saadat Ali Khan[5] held that despite of the fact that Law does not makes a provision for maintenance of illegitimate child by the father neither does the Muslim personal law disallows the father to maintain the illegitimate child, the Criminal Procedure Code is a sound general law and is binding on the citizens of the country, the reason that mohammedan law has not made any provision for maintenance, shall not mean that the court does not has. A jurisdiction to pass such a law. Same case happens in Christian Law, for an illegitimate child is constrained to seek maintenance under section 125 of CrPC.
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