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Legitimation as a Concept of Recognition

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.

The Indian 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'[1]. 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.[2] Legitimacy is also determined by the laws of a person's country of origin, i.e., the concept of lex domicilli[3]. 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 birth.[4]

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,[5] 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".[6]

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[7]. However, in Re Bischoffsheim[8] 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[9] 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[10]. 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 born[11].

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[12] 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 ex-succession.

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.[13] 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." [14]

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.[15]

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.[16]

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[17].

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:
"Every 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 lawful wedlock."[18]

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 wedlock."[19]

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[20] 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[21] 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[22] 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[23] and rather recognize the creation of legitimacy in issue. In Hyde v. Hyde[24] , 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.
  1. 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.[25] 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[26] 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 valid.

    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".[27]

    The bench 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.

    The 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 legitimate".[28]

    A similar view is reiterated in the case of K. Santhosha v. The Karnataka Power Transmission[29] 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 employee.

    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)[30] 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.

    Such a 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".[31]

    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 marriage.

    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.

    The 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.

  2. 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.

    However, when there are circumstances where it is hard to establish the actuality of marriage which is lawful, it can be established by the subsequent ways:
    1. Assertion made by the husband that the women are his wife, or
    2. When the man acknowledges that he is the father of the child, or
    3. When the men and woman cohabit for a long period of time.[32]
    In the case of Habibur Rahman v. Altaf Ali,[33] 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.

    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[34] 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.

  3. 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 legitimate, if:
    1. the child was born during the continuance of a valid marriage of their parents,
    2. the child was born within 280 days of dissolution of the marriage and where the mother remained unmarried.
    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.[35]

    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.[36]

    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.[37]

    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.[38] 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 lawful wedlock.

    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 marriage.

    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 lawful wedlock.

    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 available".

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 international adoption.

The convention provided a system of automatic recognition of adoptions made in accordance which is recognized by operation of law altogether other contracting parties.[39]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 applicable arises.

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 descendants.[40]

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 status.

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 property.

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 dispute.

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.

  1. A.S Flornby, Oxford Advanced Learners Dictionary of Current English, (7th edn, Oxford University Press 2005
  2. Mairi Robinson and George Davidson (eds), Chambers 21st Century Dictionary.
  3. ln re Goodman Trusts (1881) 17 Ch. D. 266.
  4. Lowe and Douglas in IP Enemo, Basic Principles of Family Law in Nigeria, (Spectrum Books Limited, 2008)
  5. Conflict of Laws, (1935)
  6. Sagay, Nigerian Law of Succession Principles, Cases Statutes and Commentaries, (Malthouse Press Limited, 2006) 2
  7. Galloway v. Galloway, (1953) 3 All E.R. 429; Re Lloyds, (1841) 3 Man. & G. 547.
  8. Bischoffsheim, Re [1948] Ch 79, [1947] 2 All ER 830
  9. (1881), 17 Ch.D. 226.
  10. Knowles v. Knowles [1962] 1 All ER 659.
  11. Dicey, Morris & Collins, Conflict of Laws, 14th Edition.
  12. [1964] S.C.R. 317
  13. (1883), 24 Ch.D. 637.
  14. Supra, footnote 10.
  15. Cheshire, North & Fawcett, Private International Law, 14th Edition
  16. Cheshire (7th Edition.),
  17. 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 Act.
  18. Paras Diwan, The Illegitimate Child in the Modern Law, 1969, Allahabad Law review, pp. 5-24.
  19. The laws of the East European Communist countries do not go that far. The polish Family Code, 1964.
  20. (1960) LCN/0866(SC)
  21. Cass. Nov. 23, 1857, Journal du Palais 1858, 106; Bourges, May 6, 1858; if. 1200.
  22. (1955) 15 WACA 20
  23. Taintor, What Law Governs the Ceremony, Incidents and Status of Marriage (1939)
  24. 1 P. & D. 130, 138 (1866).
  25. Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1
  26. 2018 SCC Online SC 3097
  27. Ibid, Para 15
  28. Ibid, Para 16
  29. (2021) 3 KCCR 2401
  30. Supra 26
  31. Supra 29, Para 19
  32. Mulla's Principles of Mohammedan Law (19th Edition - 1990)
  33. (1921) 23 BOMLR 636
  34. AIR 1916 ILR 38 All 627
  35. Gautam Kundu v. State of West Bengal, 1993 Cri LJ 3233
  36. Palani v. Sethu, AIR 1924 Mad, 81 I.C. 456
  37. D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 496
  38. Manu IX: 166
  39. Article 23 of the Hague Convention
  40. Article 120 of Portuguese Civil Code, 1867

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