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A Study of Illegitimacy: As A Concept

What is illegitimacy?

The term illegitimacy was originated in mid-16th century and derives its meaning from Latin term “illegitimus” which means “not in accordance with the law”.
Illegitimate in its literal sense can be understood as which is basically against the accepted and established standards or/and rules.

Who is an illegitimate child?

Basically, if we derive from the above meaning of illegitimacy, illegitimate child is the one who is born out of a wedlock. Wedlock basically means the parents of the child are not married to each other.

Illegitimacy as defined by the Oxford Dictionary means, “(Of a child) born of parents not lawfully married to each other”.
The concept of illegitimacy is not of newly originated one but has been continued and observed by people from almost a century. Since years, there is a social disgrace encompassing a kid who isn't brought into the world by legitimately married/wedded parents. The not legitimate children never appreciated equivalent status alongside the legitimate children.

The general public consistently segregated the illegitimate children from various perspectives. Not just the general public separated them, even law has segregated them. Law has not given the illegitimate children similar lawful rights as the legitimate ones are given. illegitimacy conveyed a solid social barrier among all religions rehearsed on the planet.

Children born out the relationship between parents which is nor legally or socially accepted has often seen discrimination in the society. On the other side if a child is born out of legally accepted relationship, they are termed legitimate children. We see that marriages or relationship between two individuals are often governed by various laws and even customs depending on the place where you are but a similarity can be seen all around the world regarding the illegitimate children they were not treated equally, even if certain communities might tolerate them but never appreciated them.

History
Since 1924 the Geneva declaration has stated that there must be special care taken to provide the physical and spiritual development of the children and also their protection against any kind of exploitation. Following that in 1948 under article 25 (2) the Universal Declaration of Human Rights it was stated that all children born whether in or out of the wedlock shall enjoy the same social protection.

In addition to all of this the most important development of the history was when The Convention of The Rights of The Child 1989 was adopted unanimously by the General Assembly which came into force in 1990 the main focus of this convention was not to limit the development to only political or civil rights but also to include the economic, social, cultural and all humanitarian rights which are required by the family for the primary caring and protective responsibility. There was a very important role of international cooperation in achieving all these rights for the children.

What leads to illegitimacy?

Actually, what can lead to a child known as an illegitimate child

  1. The married couple has not adhered to the law properly which led to their marriage becoming a void marriage
  2. The parents of the child were not married at the time of the birth but married afterwards.
  3. The birth of the child is due to the mother being the victim of a sexual assault or the sex worker and the Identity of the father is unknown.
  4. The birth of the child is from an adulterous relationship.
Above mentioned are some broad categories where the birth of the child is an illegitimate one.

There can be various types of personal laws governing the marriage specially in the country like India we have different personal laws according to one’s religion and customs.
Considering Hindu personal laws illegitimacy and the illegitimate child concept is discussed below:
Earlier before the enactment of Hindu personal laws the people in the society were often governed by their respective customs and therefore all the matters relating to the religion or marriage between two individuals or any family issues where governed by the same.

So back in the time Hindu women were not allowed to be the owners of the immovable property and if one has it the disposal of it will not be according to her wishes. In the older law the rights relating to illegitimate children were zero but after the enforcement of Hindu personal laws specific codified laws was stated to determine the boundary of the rights given to the illegitimate children which have also been expanded with the help of various court judgements and amendments.

The legitimacy of a child often depends upon the marriage between the two individuals hence HMA is taken into consideration Hindu marriage are governed in India under the Hindu marriage act 1955 which also is applicable to Sikh Jain or Buddhist community by (section 2) hence the validity of their marriage is also described through Hindu marriage act only. A valid marriage is a marriage which is in accordance to the section 5 and section 7 of HMA hence if it is a valid marriage the question of the child born as illegitimate has no room.

In HMA marriages are considered void as states in section 11 which says any law which is not in accordance to the section 5(i), (iv), (v) shall be declared null and void. In such cases the court grants the decree of annulment to the individuals.

Marriages are often considered as voidable (at the option of one party) in certain situations:

  1. It can be when the consent of the party was not free and fair
  2. Any party is at the time of the marriage insane
  3. If the women are already carrying child of someone else at the time of marriage
In case of voidable marriage, the party opposite to the defaulting party has the option to get a decree of annulment from the court. The children born out of such voidable marriage are considered legitimate and till the marriage is annulled by the court.

The party have two options in such cases:

  1. They can get a decree of annulment from the court.
  2. They can apply for a decree of divorce under section 12 of HMA.

If the aggrieved party follows the latter one the child will not be considered illegitimate as stated in section 16(2) of HMA it states that:
“Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.”

And also, as illegitimacy is not a consequence of divorce and divorce can only be granted if there was a valid marriage in the first place.

Aside from the abovementioned, if necessary, steps are not performed at the time of marriage according to Section 7 of the Hindu Marriage Act, the resultant marriage is definitely not a valid marriage. Such marriage will likewise fall under the classification of void ones.

Initially the children born out of marriages which were of void nature or were annulled by the court were given equal status as the marriage has been dissolved by the decree of divorce by Hindu marriage act. But as the interpretation of section 16 was done by the courts they gave a different meaning that this section was only applicable when the marriage was declared null by the court and in absence of such a declaration the child born out of such marriage will be termed as illegitimate child.

This loophole in the interpretation was soon done away when the Marriage Laws (Amendment) Act, 1976 came and amended Section 16 after which the now applicable Section 16 came. In the present scenario Section 16 interprets in a way that all the void and voidable marriages which lead to the birth of a child such a child is termed as legitimate and get equal rights and status has any other child.

If we look into case of Revanasiddappa v. Mallikarjun[1] The Supreme Court said that The Constitution of India has the basic concept of equal status and opportunities to every individual and while interpreting the relationship between any person the court should keep that into mind in any marriages except valid ones the parents may be not legally married but child born out of such relationship must have an independent identity and must be viewed separately from the relationship of their parents.

The court also said that with the amendment in section 16 (3) the view that the children of void and voidable marriage are illegitimate must be completely done away with as we must keep in mind the basic principles of preamble of our constitution and recognize such children as legitimate in any matter. This will also help us as a society in removing the stigma of illegitimacy on the children who are as innocent as any other. However, there must be no doubt in the condition that this benefit is only available to children whose parents are married but their marriage is void or voidable in the eyes of law.

Not only personal laws of Hindu create and have such problems with child born out of wedlock marriage there are more personal laws which have some or the other similar issue
In Muslim personal laws to discuss the issue of legitimate and illegitimate status of children born in the marriages which are void and voidable Muslim law addresses this issue by defining the types of marriage. There are basically three types of marriage that has been recognized according to Muslim personal law was the valid, irregular and void marriages. If we take the instance of an irregular marriage in which a marriage between a Muslim man and a woman of any other religion is irregular marriage.

Taking the instance of void marriage in this one party forcefully or without getting the consent of other party marries this is void marriage and a valid marriage being a one where two Muslim parties one give the proposal and another one give the acceptance and the marriage happens the status of child in the irregular marriage is legitimate but children who are born out of the void marriage are considered to be illegitimate and so does do not hold any right under Muslim law.

Moving on to Christian personal laws they are no codified rules and regulation in India which confers to the rights given to illegitimate children were born out of the Christian parents. So the Indian divorce act 1869 which have the provisions of illegitimate child is been considered and the status of legitimacy as similar as in Hindu and Muslim personal laws which gave the idea that children born out of void and voidable marriages have some legitimacy so does in Christian law. Whereas this should be considered that the legitimacy of a child born out of the wedlock is only up till when the marriage is being annulled by the court on genuine grounds under good faith.

Acceptance Is The Way
As a country we must agree to the point that India being in a developing stage majorly has two broad categories of people living together out of which one demands for the orthodox laws seeing illegitimacy as a sin and other ones thinking practically and not blaming the children out of unusual relationship for their existence.

As an individual we must know that every child whether or not legitimate has the right to get a proper environment to grow up with love and affection and as the law says one must not be punished for the crime that they have not committed so should the people understand that being a child born out of any marriage except valid one is not their mistake the government should also take care and bring reforms with the help of legislature to improve the status of illegitimate children in the country.

The law in the society should be amended according to the scenarios in the society and as the situation demands with the changing time so there is a need of more liberal laws and reforms towards a legitimate child so that it could have best interest for all the people in accepting them as any other child.

Bibliography:
  • Illegitimate Children Under Muslim Law by Sylvine retrieved from https://blog.ipleaders.in/illegitimate-children-muslim-law/
  • Illegitimacy under Hindu Law by Kunjal Arora retrieved from https://www.lawctopus.com/academike/illegitimacy-hindu-law/#_edn7
  • Illegitimate Children and the Law: A Primer on the Rights of Children Born Out of Wedlock in India – By Prachi Dutta retrieved from https://legiteye.com/illegitimate-children-and-the-law-a-primer-on-the-rights-of-children-born-out-of-wedlock-in-india-by-prachi-dutta/
End-Notes:
  1. Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1

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