Legitimacy to legitimation, and beyond…
A child was born to a
couple. They were neither in a live-in-relationship nor married, when he was
born. However, they married latter. Can
the child inherit the assets of his biological father? The more radical
question would be, whether the marriage of the parents, should determine the
right of inheritance or otherwise of a child?
The answer to the former question may largely depend on whether the child
is legitimate or illegitimate, while the latter may have to be viewed from
beyond this classification.
Child’s legitimacy, would finally decide whether he could inherit
his father’s assets or not. Legitimacy,
may trace its pedigree from the Latin maxim ‘pater
est quem nuptioe demonstrant’
meaning ‘he is the father whom the marriage indicates to be so’. Hence the necessary conclusion is that, a
subsisting marriage of child’s parents is the precondition for legitimacy. Common law accepted and adopted this
principle.
The present day law classifies or rather discriminates a
child as legitimate and illegitimate, for the purpose of inheritance of his
father’s assets. The definition of the
word ‘related’ in Section 3(1) (j) of Hindu Succession Act, does the mischief
for an illegitimate child, while Explanation (a) and (b) to sub section (1) of
Section 2, reminds the existence of these two classes.
“3(1) (j) ‘related’
means by legitimate kinship:
Provided
that illegitimate children shall be deemed to be related to their mother and to
one another, and their legitimate descendants shall be deemed to be related to
them and to one another, and any word expressing relationship or denoting a
relative shall be constructed accordingly.
In section 7 and 8 of the
Indian Succession Act, we find the classification of children as legitimate and
illegitimate. If the child is
legitimate, he assumes the domicile of origin of his father, if not that of his
mother. The word ‘Legitimacy’, does not find a
definition, in any of the succession statutes.
In general parlance, one is a legitimate child, if born in a lawful
wedlock. In other words, the child may
prove the marriage of his parents to be legitimate. The law, as it stands today is not prepared
to leave the child alone in his mission of proving legitimacy. It offers support; of course the support is
meaningful too, as can be traced from Section 112 of the Indian Evidence Act,
1872. It is in the nature of a presumption.
The child may show the existence of certain facts, for a conclusive
proof that he is legitimate. The facts
to be shown are:
(1) that
he was born during the continuance of a valid marriage between his mother and
his biological father, or
(2) the birth was within two hundred and eighty
days after the dissolution of their marriage, and the mother remaining
unmarried.
The person objecting
the claim of the child may show that parties to the marriage had no access to
each other at any time when the child could have been conceived.
Strictly
speaking, Section 112 is intended to protect the legitimacy of a child born during
the marriage, or within 280 days after its dissolution. Needless to say, that all others, who cannot
satisfy the time period, are illegitimate.
Marriage referred here, necessarily means a valid marriage. One may be reminded that Section 5 of the
Hindu Marriage Act, 1955 prescribes the conditions for a valid marriage, while sections
11 and 12 refer to void and voidable marriages, respectively. Therefore going by the above analogy, a child
born in a void or voidable marriage would fall outside the premise of
legitimacy.
The
English Law deduced the concept of legitimation, to widen the world of an
illegitimate child. The evolution of this concept was slow but steady. It was introduced by Legitimacy Act, 1926,
which came into effect on January 1, 1927.
The Act requires a subsequent marriage of the parents of the
illegitimate child for legitimation.
However, legitimation was barred, where either of the parents was
married to a third party, at the time of birth of the illegitimate child. A
legitimated child and his spouse, the children or remoter issue were to be entitled
to take any interest, as if the legitimated child had been born
legitimate. The formula allowed for only
one legitimated person in the chain of succession1.
The
Legitimacy Act, 1959 successfully repealed the provisions in the 1926 Act, with
effect from April 1, 1959, relating to ban on legitimation of an illegitimate
child born to adulterous parents. The
rule of construction introduced by the 1926 Act was accordingly modified as
regards wills coming into operation on or after April 1, 1959. Otherwise the law remained unchanged. The
provisions relating to legitimation contained in the 1926 and 1959 Act were
re-enacted with effect from January 1, 1976 by the Legitimacy Act 1976, and it
governs the rights of a legitimated child, in England and Wales. Section 2, state that, where the mother and father of
an illegitimate person marry one another, the marriage shall, if the father of
the illegitimate person is at the date of marriage domiciled in England and
Wales, render that person, if living, legitimate from the date of the marriage.
Section
16 of the Matrimonial Causes Act, 1973, took a step forward in protecting the
legitimacy of a child in a voidable marriage, by stating that after July 31,
1971 that a decree annulling such a marriage shall operate from the date of
such decree. Section 1 of the
Legitimacy Act, 1976, would protect a child born in a void marriage, if both or
either of the parties to the marriage reasonably believed that the marriage was
valid. Therefore the survey of the
English legislations would take us to the premise:
1. That, a child, otherwise illegitimate, could
be legitimated by the subsequent marriage of his parents.
2. That, a child in a voidable marriage
would be legitimate, as the decree annulling the marriage would operate only
from the date of the decree, and
3. That a child in a void marriage would be
legitimate if either both or either of the parents believed that the marriage
is valid. The belief may be due to
mistake of law or fact.
Let us
pause for a moment to find out the Indian position on ‘legitimacy’ and legitimation.
The development here was slow, when
compared to England. Section 16 of the
Hindu Marriage Act, 1955, was amended by the Marriage Laws (Amendment) Act,
1976 and a child born in a void or voidable marriage was extended the benefit
of legitimacy. The provision regarding a
child born in a voidable marriage appears to be more or less similar to the
English provision. However a condition,
may be irrational, is attached to such legitimation, through sub-section 3 of
Section 16, in the nature of a restriction that the child shall inherit the
self acquired assets of his parents alone.
The
apex court, has done its bit, by extending the scope of the presumption under
Section 112, in SPS Balasubramanyam vs
Sruttayan2, and latter in Madan
Mohan Singh and Ors. Vs Rajni Kant and Another3. In the former decision it was held that if a
man and woman are living under the same roof and cohabiting for a number of
years, there will be a presumption of marriage, which may be rebutted by cogent
and convincing circumstances. While in
the latter, it was held that the live-in-relationship if continued for such a long time cannot be
termed as "walk in and walk out"
relationship and there is a presumption
of marriage between them …” It needs to be fairly conceded that both
these decisions are not happily worded and do not clearly define the scope and
ambit of the presumption under Section 112.
A student of constitutional jurisprudence may say that ‘it is a piece of
judicial law making, thanks to Article 141 of the Constitution of India’.
It is significant to note that
legitimation as a concept is not new to India. Under the Mohammedan Law4,
“where the paternity of a child, that is, his legitimate descent from his
father cannot be proved by establishing a marriage between his parents at the
time of his conception or birth, the Muhammadan law recognizes
‘acknowledgement’ as a method whereby such marriage and legitimate descent can
be established as a matter of substantive law for the purpose of inheritance”
England moved forward from
legitimacy by proof of marriage of the child’s parents to legislation by
operation of law. The position of an illegitimate child was reformed
largely by the Family Law Reform Act, 1969 and 1987. Section 1 of
the Family Law Reform Act 1987 has given a total go bye, for the classification
of a child on the basis of legitimacy and illegitimacy. The question whether such a classification
should continue in India may require empirical research. But, looking at the issue, from the child’s perspective
is considered significant.
The birth of a child is never a product of a marriage. In the changing world, the sanctity of the
marriage is diminishing. Relationships’ beyond the boundaries of marriage are
common. There is no guarantee that a
relationship may necessarily end up in marriage. A child born in such a relationship would be
bracketed as ‘illegitimate’.
Illegitimacy, often affects the reputation of the child. The impulses of the adults, who engage in
extra marital relationship, cannot and should not decide the honor and
reputation of a child, arbitrarily. The
Government of India has acceded on the December 11, 1992 to the Convention on
the Rights of the Child, adopted by the General Assembly of the United Nations,
which has prescribed a set of standards to be followed by all State Parties in
securing the best interest of the child.
Article 16 of the Convention is contextually relevant, which says that
“(1)
No child shall be subjected to arbitrary or unlawful interference with his or
her privacy, family, or correspondence, nor to unlawful attacks on his or her
honour and reputation.
(2)
The child has the right to the protection of the law against such interference
or attacks.”
In the changing world, it may
have to be accepted as a constitutional truth that classification of a child as
illegitimate and legitimate, for denying the right of inheritance of his
parents’ assets, may not pass the test of reasonableness provided under Article
14 of the Constitution of India
1.
Francis Barlow (1993) Children and Issue: some
lingering growing pains, published in Private Client Business, Westlaw.UK
2.
AIR 1992
SC 756
3.
2010 (9)
SCC 209
4.
M. Hidayatullah
and Arshad Hidayathullah (2009) Mulla, Principles of Mohamendan law, Nineteenth
Edition, pg 279.
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