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Legitimacy in Hindu Law

The word legitimacy has been derived from the latin term 'legitimare' which means to make lawful, justiciable, or valid. In India legitimacy is neither a practice nor a custom. We do not have any legitimacy act and a concept alike of legitimation.

But in the course of changing time and influence of western countries Indian legislation had inherited England's recognized law of Legitimacy of Children Act 1926 which define legitimacy in Article 1(2) "Nothing in this Act shall operate to legitimate a person whose father or mother was married to a third person when the illegitimate person was born".

The act was amended by the Legitimacy Act 1959, which includes those children also whose parent(s) married to someone else while they were born[1]. In India there is a presumption in favour of legitimacy in Indian Evidence Act 1872, Section 112- birth during marriage, conclusive proof of legitimacy- which deals with the legitimacy during the wedlock.

If a person (child) is born within the duration of a valid marriage or within two hundred and eighty days after its dissolution while the mother remain unmarried shall be conclusive proof that he is legitimate child of that man, except non-access between the parents to the marriage is satisfactorily proved. It must be noted that the term 'conclusive proof' lays down certain presumption of the section 112 India Evidence Act 1872, - 'may presume', 'shall presume', and conclusive proof for the purpose of which it must be read with section 4 which states that:
"May presume"- Whenever it is provided by this Act that the Court may presume a it fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. "Shall presume"-

Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. "Conclusive proof"- When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving. Therefore, section 112 is based on the presumption of public morality and public policy[2].

Considering Muslim Law on the other hand is very harsh on illegitimacy, yet fairly liberal in the rules on legitimacy. Acknowledgement by the father that the child is through valid marriage is enough that legitimacy is possible.

Legitimacy In Hindu Law

At this moment in time Indian Laws classified children into two main stream i.e. legitimate and illegitimate children. Legitimate children are those who are born at the time of the valid marriage and in India Section 5 and 7 of Chapter II of the Hindu Marriage Act 1955, lays down the certain conditions for any marriage to be a valid marriage. Section 5 - conditions for a Hindu marriage that is essential to be fulfilled to consider any Hindu marriage as a valid marriage:
  • Neither of the party involved in marriage has a living spouse at the time of his or her marriage.
  • Neither of the party at the time of marriage is of unsound mind, insane, unfit for marriage and for procreation of children.
  • At the time of marriage, the party involved must have completed the legal age of marriage i.e. eighteen years for the bride and twenty-one years for the bridegroom.
  • Marriage should not take place between two Hindus who are connected either by their ancestors or family relations or are in sapinda relations.


Section 7 - ceremonies for a Hindu marriage- since Indian society is diversifying in nature because of which there are several sub-section and each sub-section has their own customs and religion due to which law does not give recognition to one. At the time of marriage solemnization, there must be performance of some ceremonies and customary rites of either of the parties of the marriage for any marriage to be considered as a valid marriage.

The term 'either party thereto' used in section 7 (1) make it evident the extent of liberty given to both the party of marriage to perform the marriage ceremonies and customary rites according to the either party of the marriage. Coming to Section 7(2) that revolves around 'Saptapadi' which is considered extremely important segment of the Hindu marriage. It means taking seven rounds in the front of holy fire i.e. 'Agni' made in the mandap and on the completition of the seventh round the marriage is considered valid marriage in nature and are binding on the both the party.

Illegitimate children are those children who are born out of invalid, void or irregular marriage and in India Section 11 and 12 of Chapter II of the Hindu Marriage Act 1955 declared marriage as void or voidable. According to the Section 11 any Hindu marriage will consider void if the marriage does not fulfill the conditions which are specified in the clause (i), (iv), and (V) of the section 5 of Hindu marriage act 1955.

While the grounds of voidable marriage are given in section 12 which are impotency, contravention of section 5(ii), consent obtained by coercion or deception and concealment of pre-marriage pregnancy. In today's time illegitimate children has to face lots of problem in consideration of their rights as compared to legitimate children.

But this was set aside in the case Thrumurthi Ranayammal v. Thrumurthi Muthamal[3] which amended Marriage Laws Act 1976, which brings rights for illegitimate children as well and all children will consider legitimate whether they are born out of void or valid Hindu marriage. And the illegitimate children will also have following rights in relation to their guardianship, inheritance, joint family property and partition, maintenance.

Case Laws
  1. Shanta Ram v. Smt. Dargubai AIR 1987 Bom 182 - the court stated that the children of a void marriage or unlawful relations would be deemed to be legitimate, irrespective of the decree of nullity though they would not acquire or have the right to succession to the same extent as it is available to the children of a valid marriage.
     
  2. Revanasiddappa v. Mallikarjun (2011) 11 SCC 1 - opined that the constitutional values enshrined in the Preamble of our Constitution which focuses on the concept of equality of status and opportunity and also on individual dignity. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents.[4]

Ligitimacy In Muslim Law

Muslim Law is very oppressive when it comes to illegitimacy, but yet fairly liberal in the rules on legitimacy. Muslim Law is further divided into two laws i.e. Sunni Law and Shia Law. Under the Sunni Law there is establishment of Maternity (the legal relation between the mother and child) whether the birth of a child is the outcome of a valid marriage or adultery (zina), so the child is entitled to inherit from mother alone.

While under the Shia Law birth of a child is not sufficient proof for the establishment of maternity it has to be proved that the birth was a result of valid or lawful marriage. But as per Muslim Law maternity is by fact but paternity (the legal relation which the father and the child share. Paternity is generally associate with legal relationship which is associated with certain rights and duties such as rights of inheritance, maintenance and guardianship) can only be by lawful marriage.

So by conclusion, if there is no marriage between the father and mother of a child such child will be illegitimate. And according to Shia Law such child has neither paternity nor maternity while according to the Sunni Law such child has only maternity no paternity.

Legitimacy and paternity are closely interlinked under the Muslim Law, because the maternity of a child is always established in the mother, irrespective of the fact whether the child is legitimate or illegitimate. So when paternity is established, legitimacy will automatically established. But to note down that paternity cannot be establish by adoption of a child of whom he is not the actual father. Adoption is not known to Muslim Law; and it has expressly disapproved by the Koran. Thus, there is no legitimation process in Islam.

Therefore there are certain presumptions for legitimacy in Muslim Law:
  • A child will be illegitimate if he is born within the six months after the marriage, until and unless the father acknowledge him.
     
  • However, a child will be legitimate if he is born after the six months from the date of the marriage until and unless father disclaims to acknowledge him.
     
  • Another way in which a child is considered legitimate under Muslim Law is according to Shia Law he is born within ten lunar months, according to Hanafi Law he is born within two lunar months and according to Shafii and Maliki Law he is born within the four lunar months.
     
  • According to Section 112 of the India Evidence Act 1872, birth during marriage, conclusive proof of legitimacy- which deals with the legitimacy during the wedlock. If a person (child) is born within the duration of a valid marriage or within two hundred and eighty days after its dissolution while the mother remain unmarried shall be conclusive proof that he is legitimate child of that man, except non-access between the parents to the marriage is satisfactorily proved.
     
To be noted down that in above presumption acknowledgment is only made by the father and not by mother and for valid acknowledgement there are certain essential conditions. For example - intention to confer the status of legitimacy, acknowledger must be twelve years older than the acknowledged, competency of the acknowledger, legal marriage possible between parents of the child acknowledged etc. The result of such acknowledgement means acknowledgement of wife also further it give birth to presumption of marriage and rights of inheritance to children. Such acknowledgment once made then they are irrevocable.

Case Laws
  1. Muhammad Allahdad Khan v. Muhammed Ismail Khan (1888) - where the court held that adoption in Mohammedan Law is not similar as recognized in the Hindu Law. Under Muslim Law acknowledgement of paternity is the nearest approach to adoption.
     
  2. BibiNanyer- Omissa v. BibiZainirun WR 476 - even in the absence of evidence of the marriage between the parties, the Privy Council on acknowledgement declared the child to be legitimate. But the Muslim Scholares criticized this judgment and have Muhammad Allahdad Khan.
     
  3. Habibur Rahman v. Altaf Ali (1921) 23 BOMLR 636 - no statement made by one man that another (proved to be illegitimate) is his son can make other legitimate, but where no proof of that kind has been given such a statement or acknowledgment is substantive evidence that the person so acknowledgment is the legitimate son of the person who makes the statement provided his legitimacy be possible.[5]
Conclusion
There are no illegitimate children but the parents are legitimate -- Leon R. Yankwich

Children are not born illegitimate but become illegitimate because of their parents unlawful relationship. These children has to face discrimination compare to legitimate children ; even the right to inheritance in personal law are not same for legitimate and illegitimate children. With the increasing transnational movement of the 142.86 cr. population and the growing concept of social policy and fluctuating more the issue relating to the legitimacy, legitimization and adoption has become more complex. In England the position has changed and has given respect to lex domicile.

It has given recognized on legitimacy and legitimization though the adoption is still governed by domestic laws. On the other hand in India adoption still highly influenced by personal laws with no recognition to legitimization. Difficulty so arise in India for the application of these matters because personal law is determined by individual religion. Exception to this in the state of Goa and the Union Territories of Daman and Diu, the Portuguese Civil Code, 1867 continues to apply, and under Article 119 to 122 of that code, legitimation is recognized.

Disputed matter related to legitimacy or illegitimacy cannot be determined solely on the basis of section 112 of the Indian Evidence Act, 1872; with the significant paradigms of DNA technology which establish conclusive truth in such disputes and therefore it is necessary to give prompt attention and appropriate legislation to legitimate laws at global level to avoid conflict and reduce the burden of confusion and the need for interpretation of the laws for acquiring legal legitimacy of a child.

With the changing more of legitimacy at global level in every society, including ours, what was illegitimate in the past may be legitimate today and in coming future. From various social consensus the concept of legitimacy stems in the shaping of various social groups play a vital role. Law takes its own time to adapt such social changes through a process of amendment time to time in legislation. For the purpose of which in a changing society law cannot afford to remain static.

If we look at the history of development of Hindu Law it will be clear that it was never remain static and has changed from time to time to articulate the challenges of such changing social pattern in different time. Thus there is a urgency to be more humanistic towards the illegitimate children and the laws should also be amended in such a manner that they their best interest of all the people at heart.

Bibliography
Online Sources:
  1. http://www.legalblog.in/2011/04/right-to-property-of-illegitimate-child.html
  2. https://www.researchgate.net/publication/286382119_Legal_aspects_of_legitimacy_in_Indian_perspective_An_overview
  3. https://indianexpress.com/article/india/uniformity-in-personal-laws-needed-to-protect-children-of-illegitimate-marriages-karnataka-hc-7406264/
Books
  1. Dr. Paras Diwan, Family Book,13th ed, 2023,

Legislation
  1. The Indian Evidence Act, 1872.
  2. The Hindu Marriage Act, 1955.
  3. The Muslim Marriage Act, 1939.
End-Notes:
  1. K(A Child) v The Secretary of State for the Home Department (2018) EWHC 1834 at para. 24.
  2. Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454, para 42.
  3. AIR 1974 Mad 321.
  4. http://www.legalblog.in/2011/04/right-to-property-of-illegitimate-child.html
  5. https://indiankanoon.org/doc/154200, para 15.

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