All around the world, the status of a child as to whether they are born from a
legitimate or illegitimate relationship, have a great impact over their lives.
The origin of legitimacy in England and how it influenced various other
countries on the implementation of such a law. Most importantly, the Legitimacy
Act of England guided the determination of the legitimacy of a child.
legislation had inherited England's recognised law of legitimacy and introduced
the presumption of legitimacy of children as per Section 112 of The Indian
Evidence Act. However, diverse cultures and religions in India, paved way for
various internal laws on the recognition of the legitimacy of children. There is
a need for uniform legitimation of children act in India and that it is very
essential to establish a Convention on inter-country recognition of legitimacy
for children to bring a codified law to the global level.
- Section - Sec.
- High Court - HC
- Supreme Court - SC
The words "legitimacy" and "legitimation" are synonymous with the words
'justifiable' and 'valid'. In other words, Legitimate means something that is
'allowed and acceptable according to law'. A child is, or is presumed to be,
legitimate if it is born anywhere in the world in lawful wedlock".
A child is considered legitimate, under the position in England family law, if
he or she is born to parents who were married at the time child's birth or any
time after the child's birth. Legitimacy is also determined by the laws of a
person's country of origin, i.e., the concept of lex domicilli. Under the
doctrine of Common Law, a child was a legitimate child, if his parents were
either married at the time the child was conceived or at the time of his
It is observed that, in the mid-19th century the illegitimate child
had no rights to avail from their parents. He was regarded as the son of nobody
and aptly termed fillius nullius. CJ Beale, who discusses discrimination
faced and suffered by illegitimate children under common law, states that: "The
illegitimate child was a stranger in law not only to his father but also to his
mother and all other relatives. He thus, has no legal right to succeed to their
property, to receive maintenance".
Apart from the fact that society has been discriminatory to these illegitimate
children, even the law has discriminated them. Indeed, the right to inheritance
of property is not the same as legitimate and illegitimate children.
Illegitimacy of a child had a strong social stigma in all religions practiced
around the world.
In the state of the United States of America, much like the common law system
which prevails in India, in the pursuit to determine whether a given person has
the rights with relation to his parent or child which he asserts, the courts
first question the relationship of the other person.
It is submitted that the
factual elements of a relationship which includes but is not limited to marriage
ceremony, procreation and birth are not considered directly determinative of the
existence and content of a bundle of rights and duties, but determinative of the
creation of a legal relation or status, the existence of which is directly
determinative of the asserted bundle of rights and duties.
The question regarding legitimacy or the mode of legitimation in relation to a
child with respect to his natural parents is critical and crucial as it touches
on the status of that child and determines whether the child is, amongst other
things, entitled to succeed to the estate of his father and to occupy certain
offices under native law and custom.
Position In England:
The English Common law (like Roman law) stated by openly declaring an
illegitimate child as filius nullius. However, in Re Bischoffsheim a
single judge has laid down the rule that English courts would recognize the
status of legitimacy if the child is regarded as legitimate under the law of
domicile of its parents during the time of child's birth.
This judgment is
severely criticized as it is difficult in an application where parents have
different domiciles. However, a step forward is taken by the Law Commission in
England to answer the difficulties i.e. it suggested that the legal maxim lex
domicilii is an important concept and a necessary doctrine to be adopted should
be that with which the child was most closely connected.
However, this case has
been widely criticized by many as it fails to perpetuate the traditional
distinction between legitimacy and legitimation, as held in Shaw vs. Gould
wherein the court held that legitimacy was a question of construction of the
will and not the status, and in that it applied the rule of law laid down in
legitimation situations to a case where the sole issue was that of legitimacy.
It is however stated that a child conceived before marriage is regarded as
legitimate if born after the parents were married, and so a child conceived
before but born after the parents were divorced. It is implied that an
infant born through artificial insemination will be considered a legitimate
child, even if the donor is not the husband; unless it is proved that the
husband did not consent to the insemination. A child not born in lawful wedlock
would, however, be regarded as legitimate in England if, and only if, it is
legitimate by the law of the domicile of both the parents at the time it was
People in United Stated have taken to stigmatizing the parents, rather
than the child because it is the parents who end up being responsible for the
actions that caused an out-of-wedlock pregnancy.
The statutory mechanism in England with respect to the legitimacy and
legitimation has been vividly explained and reflected in the case of Montano v.
Sanchez that, the Hon'ble Court, with respect to the question of legitimacy
in the matters of succession, to the satisfaction of the judges present, it was
held that the question of legitimacy was to be governed by the lex domicilii as
being a matter of status.
Clearly, on the expert testimony presented to the
Court the person whose legitimacy was in question was "illegitimate" by the law
of Mexico. Inspite that, the bench relied on the same evidence to showcase by
the law of her domicile, she enjoyed all the rights and obligations that would
be enjoyed by a "legitimate" child by the law of Ontario, that is, the
In effect the Law in England, before the enactment of the Legitimacy Act, 1926,
the position that legitimacy is a matter of status and is to be governed by the
lex domicilii, but that what is important is not the "tag name" that puts on
that status, but what is the substance of the bundle of rights and obligations,
which goes to make up that status. This principle, originating with the Court of
Appeal, was approved by the SC of England, however, keeping in mind the
principle of English law and that the mere fact that a person has the status of
a legitimate child does not mean that he will be entitled to succeed as such
under an English will.
That principle is thus is a distinction between the
existence of a status and the legal effects are incidents of that status.
With reliance to the status updated by the Zex domicilii and the mere fact that
such a status will be recognized by the lex fori does not necessarily mean that
the lex fori will accept the incidents flowing therefrom. The extent to which
such incidents will be allowed is governed by the local law, and the public
policy of the forum. This concept is summed up by Falconbridge:
"In other words, the child's right to claim as successor depended always on
whether he was within the definition of child in English succession law and was
not a mere question of status governed by the foreign law." 
The Rule of putative marriages declares that any child born from a void marriage
are recognized as legitimate if either of the parents believed that the marriage
is valid. This rule is also recognized by the Legitimacy Act 1959 subject to the
provision that the father should be an English citizen. Often the question
arises as to whether this rule will be applicable where the domicile country
recognizes this rule and suggestions are often in affirmative.
Thus, what Cheshire said in his seventh and earlier editions (to stress the
importance of the subject of "legitimacy and legitimation") that the first
importance of the subject is that the expression "gift to children" in the will
of a domiciled Englishman prima facie means gift to legitimate children and that
the same rule applies in case of intestacy, seems to be no longer tenable.
However, it is indeed unfortunate that the Legitimacy Act of 1926 which
effectively places England in line along with the civilized nations around the
globe, with respect to the creation of legitimation, the process and legal
aspects must confine legitimation under the laws of England to marriages
contracted when the father was domiciled either there or in Wales although it
does create the status upon marriages made before its enactment.
Position At Other Countries
Western Countries too have undergone this process of eroding the distinction
between the two. In some countries, this process was complete in the first half
of the twentieth century. Some states of the United States have the most radical
law in this regard. For instance, an Arizonian law of 1921 provides:
child is hereby declared to be the legitimate child of its natural parents and
as such is entitled to support and education to the same extent as if it has
been born in lawful wedlock. It shall inherit from its natural parents and from
their kindred heirs lineal and collateral in the same manner as children born in
Probably, the most radical law in the communist countries is that of People's
Republic of China. Article 25 of the marriage law runs: "Children born out of
wedlock shall enjoy the same rights as children born in lawful wedlock. No
person shall be allowed to harm or discriminate against children born out of
It has been held that, on grounds of public policy, there can be no legitimation
of children born during the subsistence of a valid marriage. In Cole v.
Akinyele Brett FJ opined that "I would hold it contrary to public policy for
him (the deceased) to be able to legitimate an illegitimate child born during
the continuance of his marriage under the Ordinance by any other method other
than that provided in the Legitimacy Act". The court further held that the right
of acknowledgment must exist at birth.
In Skottove v. Ferrand the issue before the HC was whether the revocation of
a gift inter vivos made by the father to a third person before his children
attaining the legitimate status valid in nature. Under the French law, the
legitimation of the children revoked this gift, which was of an annuity for an
instalment of which the done was suing the father. It is stated that the court
spoke of the benefit to the children, and there is, at least theoretically, a
benefit to the children in the father's freedom from this liability but is
indirect. The court held that bastardy is an undesirable status for violence
with respect to the French doctrine which determines the status of a person by
the dispositive laws of his nation and was done.
Thus, an illegitimate child born during the subsistence of a valid statutory
marriage cannot be legitimated even after the end of the statutory marriage.
Hence, in Alake v. Pratt it was held that children born out of wedlock,
having been legitimated by acknowledgement were entitled to share in the estate
of the deceased with the children of the statutory marriage.
It is however stated that it is possible and logical to refuse to recognize the
status of the marriage created for e.g., in case of a Foreign Polygamous
Union and rather recognize the creation of legitimacy in issue. In Hyde v.
Hyde , Lord Penzance carefully said that a refusal to entertain a divorce
action in a case of Mormon marriage would not lead to the conclusion that
children of such a married relationship are considered as illegitimate and
question of validity of the marriage of the parents.
Legislature's Recognition On Legitimacy
It is a well-established fact India is known for its multi-cultural heritage and
its diverse religious belief, thereby it must have varied laws to govern the
same. The legislation had to establish personal laws for every religion so that
it ensures harmony and integrity in the society. Inspite of implementing various
personal laws the legislative body has not recognized legitimation in India.
However, the aspect of legitimacy is being discussed time and again on various
facets of law.
- Legitimacy under Hindu Law
Under the Hindu Marriage Act, 1955 Sec. 5 and 7 describe the condition and
ceremonies to be performed for a valid marriage. Whereby, any child born to a
man and woman who have complied with the above-mentioned sections would be a
legitimate child. Whereas Sec. 11 and 12 discuss the void and voidable marriages
in which any child who is born out of this marriage will be considered as an
illegitimate child. The general understanding under Hindu Law is that children
who are born from void marriages, annulled marriages, through an illicit
relationship, or a concubine relationship.
The apex court held that the constitutional values protected in the Preamble
concentrate on the concept of equality of status and dignity of an individual.
In furtherance, it stated the court should remember that a relationship between
the parents may not at times be lawful however, a child born out of such a
relationship must viewed based on the merits and the parent's relationship shall
not be taken into consideration. However, over the time this view by the
judiciary has not been taken into consideration by the legislature.
But still, there are provisions established by the legislature to legitimacy
children who were born in such kind of marriages. Sec. 16 of the act deals with
the legitimacy of children on void and voidable marriages. Wherein, it states
that in a void marriage if any child is born from such marriage which had been a
valid marriage, immaterial of whether any decree or nullity is granted, such
child would be legitimate.
Thereby, regardless of whether the birth has taken
place before or after the commencement of Amending Act 68 of 1976, the child
will be legitimate. Similarly, in a voidable marriage if a decree or nullity is
granted to be dissolved then any child begotten before the decree was made would
be considered as a legitimate child. Thirdly, it recognizes rights in the
property of the parents, whereby it stipulates that any child born from a
marriage that is null, and void will have a right in the property of the parents
and not on ancestors' property.
In the case of Union of India v. V.R. Tripathi the bench comprising of J. Chandrachud, and J. MR Shah had dismissed the appeal filed. An order was passed
by the Bombay HC favouring the appellant whose job availability at Indian
Railways after the deceased employee, being born out of second marriage is
The court held that with reliance to Sec. 16(3) "Children do not choose
their parents. To deny compassionate appointment though the law treats a child
of void marriage as legitimate is deeply offensive to their dignity and is
offensive to the constitutional guarantee against discrimination".
discussed about the significance of Sec. 16 with regards to the implementation
of the provision would not bar the State consistent with Article 14 of the
Constitution to exclude any child from seeking the benefit of compassionate
appointment. Certainly, any conditions set on exclusion would be arbitrary and
ultra vires. Regarding this aspect, the apex court held that "We are here
concerned with the exclusion of children born from a second marriage.
condition imposed is disproportionate to the purpose intended to be achieved
because it excludes a class of beneficiaries who have been recognised lawful by
the operation of law. Regarding to the purpose and object of a compassionate
appointment scheme, it would be unacceptable to exclude such children from
consideration for compassionate appointment once the law has recognised them as
A similar view is reiterated in the case of K. Santhosha v. The Karnataka Power
Transmission wherein a writ petition was filed at Karnataka HC on providing
compassionate appointment to the petitioner. The matter was relating to denial
of compassionate appointment by the Bengaluru Development Authority on the
ground that the petitioner was born from the second marriage of the deceased
The court observed that "Having regard to the broad interpretation
given to the expression 'son' and 'daughter' so as to include even on
illegitimate son and daughter by the Hon'ble Supreme Court (in the case of V R Tripathi) for the purpose of consideration for compassionate appointment, we
find that Regulation 2(1) (b) cannot restrict the expression 'family' in
relation to a deceased Board employee to mean only his or her legally wedded
spouse and their sons and daughters who were jointly living with him.
definition would run counter to Section 16 of the Hindu Marriage Act, which is a
Parliamentary legislation and Articles 14, 15(1) and 16(1) as well as the
Directive Principles of State Policy concerning children which would include all
children, whether legitimate or illegitimate, to have equal opportunities".
Under Hindu law, the rule of legitimacy depends on the kind of marriage. If it's
a valid marriage and child is begotten by the married parent, then it is a
legitimate child. Whereas, when the marriage is void or voidable, then the child
is begotten before the decree passed or done in good faith, such child shall be
legitimate child. Similarly, the legislature had set out a similar provision in
The Indian Divorce Act, 1869 which discusses the legitimacy of children after
annulled marriage. Sec. 21 describes that if a child is begotten before the
decree for annulment of marriage, presuming the ground for such annulment was
that the previous husband or wife had died or believed to have been insane. Then
such children shall be entitled to succeed as a legitimate child and will
acquire the right to claim property of his/her parent.
Similarly, as per Indian Succession Act, 1925 illegitimate children cannot
inherit the property on intestacy which is applicable to Hindus, Muhammadan,
Buddhist, Sikh or Jain. The Christian law of inheritance, which is governed by
Indian Succession Act states that even illegitimate children who are born from
void marriages would have the right on the inheritance of their parent's
property. However, such a child shall not be born to a prohibited degree of
The aspect of Maintenance, Guardianship and Inheritance are considered on
evaluating the rights available for filius nullius under Hindu Law.
As per the
Hindu Adoption and Maintenance Act, 1956 Sec. 20 elaborates about the
maintenance of children by a Hindu immaterial of whether the child is legitimate
or illegitimate. Interestingly, if the child ceases to be a Hindu, then he will
not be entitled to avail maintenance and secondly, when it comes to illegitimate
daughter, they shall be entitled for maintenance until they are married.
Inheritance of property is only applicable over the mother's property.
Guardianship rights is towards the mother, as being the natural guardian of the
child, after which is the father who has the right. At cases where the woman is
married, the husband of the women is also considered to be the natural guardian
of the child.
Legitimacy in Muslim Law
Under the Muslim law, the object of a marriage is to legalise intercourse
resulting in children. Thereby, the legitimacy depends upon the validity of the
marriage, i.e., only when there is a valid marriage between the begetter and the
bearer of a child can we establish the legitimacy of children.
there are circumstances where it is hard to establish the actuality of marriage
which is lawful, it can be established by the subsequent ways:
In the case of Habibur Rahman v. Altaf Ali, the Bombay HC held that
legitimacy is established only if the child is born to a man and his wife, if
not then such a child will be from an illicit relationship. Nevertheless, the
legitimacy may be recognized by taking into consideration other indirect proofs
to accept the valid relationship of the marriage between the man and his wife.
- Assertion made by the husband that the women are his wife, or
- When the man acknowledges that he is the father of the child, or
- When the men and woman cohabit for a long period of time.
The significance on how other factors to be considered on recognizing the
legitimacy of children in Islamic law, the case of Sadiq Hussain v. Hashim
Ali is vital. The privy council in this case held that, when a man by giving
a statement acknowledges a child to accept him as a legitimate child, it is not
considered to be valid. However, when there is no proof of that kind, such a
statement made by the man acts as substantive evidence that the man accepts the
child and thereby shall be considered as legitimate son.
Under Islamic law, the illegitimate child has no right to inherit the property
from the father and the mother of such child is subject to severe punishment.
Thus, the legitimacy of children plays a pivotal role in their right to claim
property from the father.
The father under Islamic law is not duty-bound to
maintain his illegitimate child. Nevertheless, the provision of Section 125 of
Criminal Procedure Code, 1973 ensures maintenance by the husband to his wife,
children and the parents. But the Hanafi law identifies the obligation to
nurture the child until the age of 7, which is still not recognized by the Shia
laws. Moreover, it is important to be understand that under Hanafi law, if there
is a revocable talaq the legitimacy of a child would be based on whether such
child was born within four years from the time of talaq.
Presumption of Legitimacy under The Evidence Act
Section 112 of the Indian Evidence Act, 1872 discusses the legal presumption of
legitimacy of children born to married couples. On the bare perusal of the
provision, two conditions are highlighted to declare that a child would be
n satisfying any of the condition, it is a conclusive proof that the child is
legitimate of their parents. However, if there is evidence that showcases that
during the conception, the married couple did not have access to have begotten,
then the presumption will be questioned. The above-mentioned situation shall not
be a mere probability but shall be proved beyond all reasonable doubts.
- the child was born during the continuance of a valid marriage of their
- the child was born within 280 days of dissolution of the marriage and
where the mother remained unmarried.
The intend of the legislation of this provision was to establish that the
children born during a valid marriage shall be considered as legitimate. The
judiciary has made various interpretations in this facet of law. It has held
that, Sec. 112 would be applicable irrespective of whether the mother was a
married women or not during the time of conception.
On the issue of legitimacy of a child born out of an "Live-in relationship" the
apex court held that if the parties had continuous cohabitation for several
years, the law would presume the parties as a married couple. Thereby, with
reliance to Sec. 114 of Indian Evidence Act, the bench presumes the party to be
husband and wife consequently, the child is legitimate.
Under the Hindu personal law, the ancient law had recognized one of the kinds of
son called as aurasa, which was defined by Manusmriti as a son where a man
begets on his own wedded wide. This meaning was widely accepted by
Yagnavalkya Smriti (inherited by Dayabhaga School) as well as the Mitakshara
School. Thus, as per the Shastras of Hindu law to declare an aurasa son, such
child should have been conceived and given birth during the continuance of a
Thereby, it can be understood that a child conceived as well as born within a
lawful marriage will be considered as an aurasa son and will also be regarded as
legitimate as per Sec. 112 of Indian Evidence Act. However, it is to be observed
that child conceived before the marriage and born would not be acquire a status
of aurasa, but Sec. 112 had broad meaning and includes such scenarios and would
presume the child to be legitimate.
The analysis of Muslim personal law along with Sec. 112 of Indian Evidence Act
would help in understanding the conflicting views on the presumption of
legitimacy. Unlike the Evidence Act, the legitimacy of the child depends upon
the conception of the child. The presumption of legitimacy under Evidence Act
was inherited from English doctrine per subsequent matrimonium, where a child
conceived before a lawful wedlock would be considered as legitimate after their
However, under Muslim law, the child to be legitimate must have been conceived
during the continuance of a valid marriage and any child born by an illicit
relationship cannot be considered as a legitimate child even after getting a
An important difference between both the laws is that, under Evidence Act a
child born after 280 days from dissolution of marriage would presume to be
illegitimate, per contra in Muslim law a child born after 280 days but within 2
years of dissolution of marriage is presumed to be legitimate.
Thereby, it appears that the provision on legitimacy of a child recognized under
Indian Evidence Act has various contradictions with the Shariat law, howsoever,
the latter will prevail on presumption of legitimacy.
International Conventions On Recognising The Legitimacy Of A Child
An International Human Rights treaty is The United Nations Convention on the
Rights of the Child (UNCRC) which was established in 1989 having 196 countries
including all the countries of the UN except United States being signed up.
Independent experts of 18 members were appointed as the UN's Committee on the
Rights of the Child to supervise and effective implementation of the Convention.
The UNCRC also involve in non-governmental organizations to supervise its
implementation. It guides UNICEF's work which clearly states that "every child
has the right to grow up in a family environment. Intercountry adoption is one
the options for those children when such environment or assistance is not
The parties to the convention were duty bound to ensure that basic requirements
of the children are met which helps them to reach their highest potential. The
UNCRC has around 54 articles which discusses the rights of children, such as
civil, economic, cultural, political, and social rights. The convention had
brought various changes in their protocols. During 2000, two major protocols
were introduced, where one was to restrict non-forcible recruitment of armed
forces and the second was regarding prohibition of child prostitution and child
pornography. These protocols were ratified by around 120 states.
However, in the third optional protocol which was established in 2011 which
dealt about children whose right had been violated to make a complain directly
to the UN Committee, the supervisory body of the convention. India ratified the
convention in 1992 agreeing to all the protocols except the matter related to
child labor. Inspite there being many laws that restrict children to work, the
legislature has not put a complete ban on children under the age of 18 allowed
to work, except there being a restriction at hazardous industries. The UNCRC
does not specifically discuss the legitimacy part of the children.
Nevertheless, The Hague Convention on Protection of Children and Co-operation in
Respect of Intercountry Adoption which was drafted on 29th May 1993 elucidates
about international adoption, child laundering and child trafficking. It is an
international convention initiated to safeguard the children involved in matters
pertaining to abuse, corruption, and exploitation along with protocols for
The convention provided a system of automatic recognition of adoptions made in
accordance which is recognized by operation of law altogether other contracting
parties.Every country that had signed up in the Hague Convention were
required to have a central authority to implement its regulations.
The principal purpose of the Convention was to set-up safeguards to ensuring the
intercountry adoption are done in good faith for the betterment of the child,
inclusive of their fundamental rights being recognized in international law.
Furthermore, to establish a co-operation between the contracting states to
ensure that children are protected and prevented from abduction and sale or
trafficking. Finally, one more important reason is to ensure protection by the
Convention to the Contracting States in recognition of adoption.
Legitimation - The Need Of The Hour In India
In India, the presumption of legitimacy of a child alone is recognized and the
concept of legitimation is not discussed. The mere existence of legitimacy alone
cannot solve the issue on legitimation of a child because various factors are
not in favour of its applicability. For instance, when there is an inter-caste
marriage and a child is born, the conflicting views would be the which personal
law shall be implemented on finding the legitimacy of the child. So, at cases
when different religion is involve the conflict on which internal law shall be
However, it is observed that The Portuguese Civil Code, 1867 which is applicable
to the State of Goa as well as at the Union Territories of Daman and Diu discuss
about the Legitimation of children. It is a general understanding that,
legitimation of a child not only benefit the children, but also their
On the bare perusal of Article 119 of the Code, legitimation of child is
possible by way of recognition by the parents, by way of suit or judgment by the
court on child's filiation. Unlike the concept of legitimacy, the legitimation
can be recognized by both the parents together or any of them separately.
However, one vital procedure which needs to be followed is that, during the
legitimation of the child, the concern parties, i.e., the parents, shall not
disclose the information about the child's origin. Moreover, it is important to
note that legitimation is applicable from the time of acquiring a valid married
Concerning to legitimation by separate recognition of a child, the person
legitimating shall be capable of contracting a marriage within 120 days out of
300 days which antecede the birth of the children. Another way of legitimation
is the self-voluntary legitimation recognized by the child himself. The
voluntary legitimation by the children also has the same rights just as
legitimation acquired by the judgment. The right to use the surname of the
parents, the right of maintenance and have right over inheritance of parent's
The provisions as mentioned in the Portuguese Civil Code about legitimation
gives a clarity on the implementation of legitimacy, however in India the
legislature has not introduced any law on legitimation of children. The
legitimation would provide for uniformity of law throughout the nation. It is an
undeniable fact that India is known for its diverse religion and have varied
personal law, thereby it causes conflict of views on implementation of
legitimacy of a child.
It has become the need of the hour for the Indian legislation to establish a
concrete law for legitimation of children. Having seen dynamic changes in
various facets of law, it is equally necessary on establishing a law for
legitimation in India. Apart from the legislature, the judiciary also have equal
responsibility on establishing the recognition.
The Judiciary shall be more progressive and take up suo-moto matters regarding
the legitimation of children to ensure clarity in the law. They can put forth
certain protocols or conditions for recognizing the legitimacy of a child, which
will persuade the legislative body to come up with an explicit law.
The important aspect which needs to be considered is the legitimation of
children considering the foreign element. So far, there is no specific
Convention or Treaty regarding the legitimacy of children. Thereby, an
intergovernmental organisation such as United Nation (UN) must come up with a
treaty dealing with the inter-country recognition of legitimacy of a child.
Such a treaty would help in recognizing a unified law for recognition of
inter-country legitimacy of children. By setting a specified objective and goal
for the treaty and appointing a committee as a regulatory body for supervision
on implementation of such protocols.
Furthermore, making various countries sign the treaty and explain the protocol.
This kind of recognition of legitimacy of children in a wide area is essential,
as it ensures a unified code for implementation by various countries. At the
current scenario, having such a Treaty or Convention for legitimacy of children
at the global level is required the most.
No child is involved in the selection process of his biological parents. The
entire process is divinely ordained. Nonetheless, some children are regarded as
illegitimate by their fathers, and indeed the society at large. This unfortunate
situation generally occurs where the child is neither born nor conceived during
a valid marriage. It is often worse where the paternity of the child is in
The purpose of the laws which create and introduce the concept of legitimacy or
legitimation is to effectively ameliorate the condition of the children
concerned. Therefore, that if a child is once born, then the lucrative interests
to be considered are those of the child and not those of the parents, nor the
general policy of the state.
Moreover, it very much necessary to have a recognized legitimation law in global
level to avoid the conflict of laws. Most importantly, such an establishment
will help in recognizing the inter-country legitimacy for a child. It reduces
the burden of confusion and the need for interpretation of the laws for
acquiring the legitimacy of a child.
- A.S Flornby, Oxford Advanced Learners Dictionary of Current English,
(7th edn, Oxford University Press 2005
- Mairi Robinson and George Davidson (eds), Chambers 21st Century
- ln re Goodman Trusts (1881) 17 Ch. D. 266.
- Lowe and Douglas in IP Enemo, Basic Principles of Family Law in Nigeria,
(Spectrum Books Limited, 2008)
- Conflict of Laws, (1935)
- Sagay, Nigerian Law of Succession Principles, Cases Statutes and
Commentaries, (Malthouse Press Limited, 2006) 2
- Galloway v. Galloway, (1953) 3 All E.R. 429; Re Lloyds, (1841) 3 Man. &
- Bischoffsheim, Re  Ch 79,  2 All ER 830
- (1881), 17 Ch.D. 226.
- Knowles v. Knowles  1 All ER 659.
- Dicey, Morris & Collins, Conflict of Laws, 14th Edition.
-  S.C.R. 317
- (1883), 24 Ch.D. 637.
- Supra, footnote 10.
- Cheshire, North & Fawcett, Private International Law, 14th Edition
- Cheshire (7th Edition.),
- This Act applies in terms to marriages contracted while the father was
or is domiciled in England or Wales, whether contracted before or after the
- Paras Diwan, The Illegitimate Child in the Modern Law, 1969, Allahabad
Law review, pp. 5-24.
- The laws of the East European Communist countries do not go that far.
The polish Family Code, 1964.
- (1960) LCN/0866(SC)
- Cass. Nov. 23, 1857, Journal du Palais 1858, 106; Bourges, May 6, 1858;
- (1955) 15 WACA 20
- Taintor, What Law Governs the Ceremony, Incidents and Status of Marriage
- 1 P. & D. 130, 138 (1866).
- Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1
- 2018 SCC Online SC 3097
- Ibid, Para 15
- Ibid, Para 16
- (2021) 3 KCCR 2401
- Supra 26
- Supra 29, Para 19
- Mulla's Principles of Mohammedan Law (19th Edition - 1990)
- (1921) 23 BOMLR 636
- AIR 1916 ILR 38 All 627
- Gautam Kundu v. State of West Bengal, 1993 Cri LJ 3233
- Palani v. Sethu, AIR 1924 Mad, 81 I.C. 456
- D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 496
- Manu IX: 166
- Article 23 of the Hague Convention
- Article 120 of Portuguese Civil Code, 1867