FAMILY LAW

MAHARASHTRA NATIONAL LAW UNIVERSITY

,AURANGABAD

FAMILY LAW
LEGITIMACY OF CHILD BORN OUT OF VIOD AND VIODABLE
MARRIAGE

SUBMITTED TO
Dr. Ashok Wadje
Asst. Professor (Law)
SUBMITTED BY:
Sipun.S.Sahoo
Rollno :15
SEMESTER III, B.A. LL.B (HONS.)

1
FAMILY LAW

SR.NO TITLE PAGE. No

1 INTRODUCTION 3
2 NULLITY OF MARRIAGE 5
3 8
7 SECTION 112 OF INDIAN EVIDENCE 12
ACT
5 JUDICIARY ON ILLEGITIMACY 13
6 CONCLUSION 15
7 BIBLIOGRAPHY 16

2
FAMILY LAW

INTRODUCTION
Legitimacy is the status of a child born during the continuance of a valid marriage between the
mother and any man, or within 280 days after its dissolution if the mother remains unmarried,
unless it is shown that the parties to the marriage had no access to each other at any time when
the child could have been conceived, his birth is treated as a conclusive proof of being legitimate.

Legitimacy refers to the status of a child who is born to parents who are legally married to each
other. The word legitimacy has been derived from the Latin term “legitimare” which means to
make lawful. The Indian law is averse to declare a child as illegitimate. Under the Indian
Evidence Act 1872, there is presumption in favour of legitimacy of a child born during the
continuance of a valid marriage between his mother and any man, or within 280 days after its
dissolution, the mother remaining unmarried. The presumption can only be rebutted if it is shown
by competent evidence that the parties to the marriage had no access to each other at any time
when the child could have been begotten.

An illegitimate child or bastard is one which is born to parents who are not lawfully wed to each
other or not within a competent time after the cessation of the relationship of a man and his wife,
or born within wedlock when procreation by the husband was not possible because of congenital
or acquired mal formations or illness.

Traditionally, the children of polygamous marriage are not regarded as legitimate

Legitimization: - Legitimization is a process to recognize the child to be legitimate, for example

by subsequent marriage between the parties and acknowledgment by the man. The Indian law,
whether Hindu law or Muhammadan law, only recognizes the concept of legitimacy of a child
and not of Legitimization.

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, Legitimization is recognized.

The question of determination of legitimacy may arise in the following cases:-

1. Inheritance of property

2. Affiliation Cases

3. Supposititious Child

4. Nullity of marriage

5. Divorce

3
FAMILY LAW

6. Posthumous child

4
FAMILY LAW

NULLITY OF MARRIAGE

Marriage is a holy arrangement adopted and recognized by society and religion, between man
and woman who are called husband and wife respectively. It is a religious sacrament some time
referred as contract between man and woman to live life together as husband and wife. The
concept of holy wedlock has given it religious sacramental status in religion. In India marriage is
also legal status under different personal laws such as Hindu Marriage Act, 1955, Parsi Marriage
and Divorce Act, 1936, Indian Christian Marriage Act, 1872. There is also Special Marriage Act,
1954 for certain marriages. Under muslim law marriage is a contract. Though the marriage is a
holy wedlock for life but due to some complexity and prospective development in modern
society there are legal grounds for the end of marriage, or nullify the marriage. Nullity of
marriage is a legal declaration by the court that there was no existence of marriage between two
people and marriage was not valid. It is a declaration that supposed that marriage was never
happened.

NULLITY OF MARRIAGE UNDER DIFFERENT LAWS IN INDIA

Nullity of marriage under Hindu law

For the hindus according to smrities marriage is an essential sanskar. It is a duty of one to
perform this. Marriage was indissoluble and and essential to perform religious and spiritual
responsibility. Before the parliamentary enactment there was no concept of end of marriage or
nullity of marriage under hindu personal law and marriage it treated as holy and strong wedlock
for whole life. But after enforcement of Hindu Marriage Act, 1955 there are certain grounds on
which marriage shall be declared null and void. These grounds are given under Clause (i), (iv)
and (v) of Section 5 of The Hindu Marriage Act, 1955. These grounds are as follow:

1. If either party has living spouse at the time of marriage i.e. bigamy

2. If marriage between prohibited degree relation unless customs and usage are allowed,

3. If marriage between sapindas unless customs and usage are allowed such marriage

 Sagotra marriage is valid under Hindu Marriage Act, 1955

There are voidable marriages also which are valid until declared null and void. Voidable
marriage shall be annulled by the decree of nullity under section 12 of Hindu Marriage Act,
1955. It is at the option of the parties to continue with marriage or to annul marriage by decree of
court. Grounds are as follow

1. Impotency of the respondent

5
FAMILY LAW

2. Incapacity to give valid consent or forced consent of parties or mental illness or person
unfit for procreation of child

3. Under aged marriage

4. If respondent was pregnant by some other person at the time of marriage.

Nullity of marriage under Muslim Personal law

Under islam marriage is a dissoluble contact different from the Hinduism where marriage is
indissoluble. Under Muslim personal law marriage is treated as contract where valid consent of
both the parties is required and ‘mehar’ is also decided. Hence dissolution of marriage is also
permitted in both the sect shia and sunni. Under Dissolution of Muslim Marriage Act, 1939 and
personal law marriage without valid consent by the parties or there guardian is void. There are
some other grounds also on which marriage can be declared null and void. These grounds are as
follow:

1. Interreligious marriage by woman does not have religious status. A muslim male also
cannot marry a female who does not follow Isalm.

2. Marriage between milk relation or ‘maharim’ close blood relatives.

3. Marriage with person who renounce Islam or not having faith in principle of Islam.

4. Temporary or conditional marriage is void in Sunni.

5. Marriage to a woman during the period of iddat.

6. Where conditions of marriage are against the principle of Islam.

Nullity of marriage under Special Marriage Act, 1954

Under section 24 of the Act on the petition of either of the party marriage can be declared null
and void by the decree of nullity on following ground

1. Neither party has living spouse

2. Incapable to give valid consent due to unsoundness of mind or mental illness or unfit to
procreation of children

3. Parties are under aged

4. Parties are in relation of prohibited degree

6
FAMILY LAW

5. Impotency of respondent

There are some other grounds on which voidable marriage can be declared null and void.

1. Marriage has not been consummated due to willful refusal of respondent.

2. If respondent was pregnant by some other person at the time of marriage.

3. Consent of either party was obtained by fraud or coercion as defined in Indian Contract
Act, 1872

Special marriage Act provides legal status and security to the interreligious marriage performed
according to the provisions of this Act. Any person of any cast or religion may perform his or her
marriage under this Act.

7
FAMILY LAW

LEGITIMACY OF CHILDREN OF VOID AND VOIDABLE MARRIAGE

Where a decree of nullity is granted in respect of any marriage under section 11 or 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 it had been dissolved instead of having been declared null
and void or annulled by a decree of nullity shall be deemed to be their legitimate child
notwithstanding the decree of nullity:

Provided that nothing contained in this section shall be construed as conferring upon any child of
a marriage which is declared null and void or annulled by a decree of nullity any rights in or to
the property of any person other than the parents in any case where, but for the passing of this
Act, such child would have been incapable of possessing or acquiring any such rights by reason
of his not being the legitimate child of his parents.

Legitimacy of Children of Void and Voidable Marriages under the Hindu Marriage Act

Under the general law, a legitimate child is one who is born in a lawful wedlock, and a child
born out of a void marriage is necessarily a bastard. This would normally cause great hardship to
a child (for no fault of his own), and therefore, S. 16 provides that notwithstanding that a
marriage is null and void under Section 11, any child of such a marriage, who would have been
legitimate if the marriage had been valid, is to be considered to be a legitimate child. It is
immaterial whether or not a decree of nullity is granted in respect of that marriage under the Act,
and whether or not the marriage is held to be void otherwise than on a petition under this Act.

It has also been provided that if a decree of nullity is granted in respect of a voidable marriage
under S. 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, is to be deemed to be their legitimate child, notwithstanding
the decree of nullity.

Thus, by a fictio juris (legal fiction), a child born of a void or voidable marriage is deemed to be
the legitimate child of his parents. The effect of this fiction is that for all purposes, including
rights of inheritance and succession, such a child is to be regarded as a legitimate child of the
parents.

It may be noted that S. 16 comes into play only if a marriage is proved to have taken place
between a man and a woman, but which is otherwise null and void under S. 11. So, when there
has been no marriage at all, S. 16 cannot be involved, and legitimacy cannot be conferred on any
child. (Sudarshan Karir v. The State, A.I.R. 1988, Del. 368)

8
FAMILY LAW

Following the above principles, the Madras High Court has reiterated that a child born out of a
void marriage will share the father’s property equally with the other legitimate children.
(Margabandhu v. Kothandarama, A.I.R. 1984, Mad. 270)

The Kerala High Court has clarified that S. 16 applies to marriages that are void under S. 11 of
the Act (which applies only to those marriages which are solemnized after the Act came into
force). Therefore, children born of a second marriage which is void and which was solemnized
prior to the Act are not entitled to be legitimised. (P.E. Kanapravan v. K. Devi, A.I.R. 1989, Ker.
279)

In the above case, it was also held that S. 16 is not violative of Article 14 of the Constitution.

However, an important exception is also made to the above rule. The effect of the exception is
that what has been stated above does not confer upon any child of a marriage which is null and
void, or which is annulled by a decree of a nullity, any rights in or to the property of any person,
other than the parents, in any case where, but for passing of this Act, such child would have been
incapable of possessing or acquiring any such rights by reason of his not being the legitimate
child of his parents.

Legitimacy of Children of Void and Voidable Marriages under the Special Marriage Act

Nullity of Marriage and Divorce

Section 24. Void marriages

(1) Any marriage solemnized under this Act shall be null and void (and may, on a petition
presented by either party thereto against the other party, be so declared) by a decree of nullity if-

(i) any of the conditions specified in Cls.(a),(b), (c) and (d) of Sec. 4 has not been fulfilled : or

(ii) the respondent was impotent at the time of the marriage and at the time of the institution of
the suit.

(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under
the Act within the meaning of Sec. 18, but the registration of any such marriage under Chapter
III may be declared to be of no effect if the registration was in contravention of any of the
conditions specified in Cls.(a) to (e) of Sec. 15:

Provided that no such declaration shall be made in any case where an appeal has been preferred
under Sec.17 and the decision of the District Court has become final.

Section 25. Voidable marriages

9
FAMILY LAW

Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of
nullity, if-

(i) the marriage has not been consummated owing to the wilful refusal of the respondent to
consummate the marriage ;or

(ii) the respondent was at the time of the marriage pregnant by some person other than the
petitioner; or

(iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined in
the Indian Contract Act, 1872 (9 of 1872):

Provided that in the case specified in Cl.(ii) the Court shall not grant a decree unless it is
satisfied-

(a) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(b) that proceedings were instituted within a year from the date of the marriage; and

(c) the marital intercourse with the consent of the petitioner has not taken place since the
discovery by the petitioner of existence of the grounds a decree :

Provided further that in the case specified in Cl.(iii), the Court shall not grant a decree if,-

(a) proceedings have not been instituted within one year after the coercion had ceased or, as the
case may be, the fraud had been discovered; or

(b) the petitioner has with his or her free consent lived with the other party to the marriage as
husband and wife after the coercion had ceased or as the case may be, the fraud had been
discovered.

Section 26. Legitimacy of children of void and voidable marriages

(1)Notwithstanding that a marriage is null and void under Sec. 24, any child of such marriage
who would have been legitimate if the marriage had been valid, shall be legitimate, whether such
child is born before or after the commencement of the Marriage Laws(Amendment) Act, 1976,
and whether or not a decree of nullity is granted in respect of that marriage under this Act and
whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under Sec.25, any child
begotten or conceived before the decree is made, who would have been the legitimate child of

10
FAMILY LAW

the parties to the marriage if at the date of the decree it has been dissolved instead of being
annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon
any child of a marriage which is null and void or which is annulled by a decree of nullity under
Sec. 25, any rights in or to the property of any person, other than the parents, in any case, where,
but for the passing of this Act, such child would have been incapable of possessing or requiring
any such rights by reason of his not being the legitimate child of his parents.

Legitimacy of a Child under Muslim Law in India

Legitimacy is a status which directly results from the fact of paternity of a child. When the
paternity of a child is established, its legitimacy is also established. Basis of legitimacy is
paternity which depends upon the existence of a marriage. Therefore, under Muslim law the
legitimacy of a child is established by a direct or indirect proof of marriage between the father
and mother of the child. In cases where no direct proof of marriage is available, the existence of
a lawful marriage may be presumed by:

(i) A prolonged cohabitation of a man and a woman (not prostitute), or

(ii) By the fact that a man acknowledges a woman as his wife, or

(iii) By the fact that man acknowledges himself as father of a child.

Thus, we find that the basis of legitimacy under Muslim law is the existence of marriage and the
marriage itself may be presumed when a man acknowledges paternity to a child bom to a woman
(wife). It may be said that the marriage between a man and woman and the legitimacy of their
off-springs are corelated.

We have already seen that juridically the object of a Muslim marriage is to legalise intercourse
and to legitimatise the issues. In Habibur Rahman v. Altaf Ali, the Privy Council while
explaining the Muslim law of legitimacy observed:

“A son to be legitimate must be the off-spring of a man and his wife ; any other off-spring is the
off-spring of Zina that is illicit connection, and cannot be legitimate. The term ‘wife’ necessarily
connotes marriage; but as marriage may be constituted without any ceremonial, the existence of
a marriage in any particular case may be an open question. Direct proof may be available but if
there be no such (direct proof), indirect proof may suffice. Now, one of the ways of indirect
proof is by an acknowledgement of legitimacy in favour of a son.”

It is to be noted that acknowledgement here means a declaration ascertaining the paternity where,
although the marriage exists but the child’s paternity is doubtful because there is no direct proof

11
FAMILY LAW

of the marriage under Muslim law. An acknowledgement cannot legitimatise a child who is
proved to be illegitimate.

12
FAMILY LAW

PRESUMPTION AS TO LEGITIMACY OF A CHILD UNDER SECTION 112

OF THE INDIAN EVIDENCE ACT

Section 112 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) relates to the
legitimacy of a child born during wedlock. The law presumes that if a child is “born during the
continuance of a valid marriage between his mother and any man, or within two hundred and
eighty (280) days after its dissolution, the mother remaining unmarried…”, it is conclusive proof
of its legitimacy unless it can be proven that the parties to the marriage did not have any access
to one another. The legislative spirit behind this section seeks to establish that any child born
during a valid marriage must be legitimate. The law does not presume dishonorable or immoral
actions unless conclusive proof can be produced for the same. Therefore, section 112 is based on
the presumption of public morality and public policy.

LOOPHOLES IN SECTION 112 OF THE EVIDENCE ACT

The establishment of paternity under both, civil and criminal law, is extremely important. The
law presumes the legitimacy of a child born during a valid marriage as conclusive. The only
exception under the law is non-access between the parties. This “non-access” refers to the non-
existence of opportunities for sexual intercourse. This creates a legal lacuna with respect to cases
where paternity may be disputed even when the parties had “access” to each other, for example,
in cases of adultery. In such a case, due to the standard of “conclusive proof”, a party with a
legitimate case trying to dispute paternity will find themselves without remedy due to the
inability to produce evidence. The exception to this law, i.e. “non-access” is not wide enough to
cover all possible situations under the ambit of this law. Thus, the law is a draconian law based
on morality with no relevance in the modern era.

“CONCLUSIVE PROOF”
Section 4 of the Act, lays down three degrees of presumption – ‘May presume’, ‘Shall presume’,
and ‘Conclusive proof’. It must be noted that section 112 of the Act uses ‘conclusive proof’ and
thus section 4 and section 112 must be read together. Therefore, if the two requirements
of section 112 are proven, it shall be considered as conclusive proof of legitimacy, which means
that further evidence to disprove said fact may not be given. The legitimacy of such a child
cannot be rebutted unless non-access can be proved. This creates problems for the party
disputing the paternity of the child.

The section is based on the presumption of morality and may, in certain circumstances, hold the
party disputing paternity unjustly accountable. Since the question of legitimacy is an extremely
important one in cases of custody, maintenance etc., it is impractical for the section to provide
such a limited exception.

EXCEPTION OF “NON-ACCESS”
13
FAMILY LAW

Section 112 of the Act provides a very limited exception to the presumption of legitimacy. A
valid marriage may not be conclusive proof if it can be shown that the parties to the marriage had
no access to each other during time of conception. This has to be proved beyond reasonable
doubt and not just mere balance of probabilities.

As previously stated, the section is based on a presumption of moral behavior. However, one
cannot completely disregard the possibility of such behavior, in which case the party disputing
the paternity is being held unjustly accountable. The purpose of law is to provide justice in a fair
and efficient manner. When moral principles become the basis for a law, it defeats this basic
purpose.

14
FAMILY LAW

JUDICIARY ON ILLEGITIMACY
The court has given some landmark judgments in the field of illegitimacy.

Some of such decisions are:

The Supreme Court of India in Revanasiddappa v. Mallikarjun 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.

A child born in such relationship is innocent and is entitled to all the rights which are given to
other children born in valid marriage.

In Jinia Keotin v. Kumar Sitaram Manjhi , the Supreme Court has said:

Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock.
If the marriage itself is void on account of contravention of the statutory prescriptions, any child
born of such marriage would have the effect, per se, or on being so declared or annulled, as the
case may be, of bastardising the children born of the parties to such marriage.

In Kamulammal (deceased) represented by Kattari Nagaya Kamarajendra Ramasami Pandiya

Naicker v. T.B.K. Visvanathaswami Naicker (deceased) & Ors, the Privy Council held when a
Sudra had died leaving behind an illegitimate son, a daughter, his wife and certain collateral
agnates, both the illegitimate son and his wife would be entitled to an equal share in his property.
The illegitimate son would be entitled to one-half of what he would be entitled had he been a
legitimate issue. An illegitimate child of a Sudra born from a slave or a permanently kept
concubine is entitled to share in his father’s property, along with the legitimate children.

In Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh & Anr, the
facts were that the Raja was a Sudra and died leaving behind a legitimate son, an illegitimate son
and a legitimate daughter and three widows. The legitimate son had died and the issue was
whether the illegitimate son could succeed to the property of the Raja. The Privy Council held
that the illegitimate son was entitled to succeed to the Raja by virtue of survivorship.

In Thrumurthi Ranayammal v. Thrumurthi Muthamal, the Madras High Court observed, “the
wordings of Section 16 of the Hindu Marriage Act, in so far as it is relevant to a marriage void
under Section 11, leads to an anomalous and startling position which could not have been
contemplated by the legislature. The position and status of a child of void marriage should
obviously be the same whether the marriage is declared a nullity under Section 11 or otherwise.

In Shanta Ram v. Smt. Dargubai, the Bombay High Court observed that the children of void
marriages would be deemed legitimate, irrespective of the decree of nullity although they would

15
FAMILY LAW

not acquire the right to succession to the same extent as is available to the children of valid
marriage.

16
FAMILY LAW

CONCLUSION
The Indian Society is a metaphysical society and so, it is going through a transformation stage
which consists of two broad categories of people with two distinct ideologies. One of the groups
believes in the orthodox methods where having an illegitimate child is a taboo and being one is a
bigger stigma.

The other group in the society consists of people who are rational and liberal in their outlook and
do not consider illegitimacy as a stigma. They do not blame an illegitimate child for his/her
existence instead blames the irresponsible couple. The laws in the society are also being
amended accordingly as the time and the situation demands.

There is a need to be more liberal towards the illegitimate children and the laws should also be
amended in such a way that they have the best interest of all the people at heart.

17
FAMILY LAW

BIBLIOGRAPHY

1. HINDU MARRIAGE ACT,1955

2. SPECIAL MARRIAGE ACT,1954
3. MUSLIM MARRIAGE ACT,1939
4. INDIAN EVIDENCE ACT,1872

18