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.
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.
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
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
- The married couple has not adhered to the law properly which led to
their marriage becoming a void marriage
- The parents of the child were not married at the time of the birth but
- 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.
- The birth of the child is from an adulterous relationship.
Above mentioned are some broad categories where the birth of the child is an
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
Marriages are often considered as voidable (at the option of one party) in
- It can be when the consent of the party was not free and fair
- Any party is at the time of the marriage insane
- If the women are already carrying child of someone else at the time of
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:
- They can get a decree of annulment from the court.
- 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
 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.
- Illegitimate Children Under Muslim Law by Sylvine retrieved from
- 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/
- Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1