Tanya Singh, JEMTEC School of Law
REVISITING THE CONCEPT OF LEGITIMACY OF CHILDREN IN THE BACKDROP OF CHANGING NOTIONS MARRIAGE, FAMILY AND PROCREATION RIGHTS
With increasing pace of life, children are left neglected in the most important times. They are the sufferers of depression, drug abuse, suicide and many more social problems. We need dig deep into the root cause of such issue and eliminate the same to make this a world a better place for the children to grow and succeed. One such issue is of legitimacy in changing notions of marriage and family. The tag of being an illegitimate child is a torture to many children which hampers their growth at an early stage. This article will discuss about the legitimacy of children in each aspects of the changing cultural environment like that of marriage and family. Legitimacy of children in the present scenario is changing and needs to be addressed. Different notions of marriage and family interfere with the cultural of the country and are the reason for communal dispute. This is a loss to the growth of the children. A separate law that could be just about legitimacy needs to come into force. This article also holds a glimpse of legitimacy laws in other nations and in the it discusses about the importance to uphold the legitimacy laws and allow them to be a bit lenient so that the people become accepting towards such vulnerable issue. Disputes arising in Live in relationships should be dealt separately. Hindu law Muslim law speak a little about child rights, be that legitimacy, guardianship, inheritance and fundamental rights. It is high time for the nation to accept and accommodate different types of marriage and family and co exist peacefully with that. Parenthood should not be a puppet in hands of those who do not value the lives of children. World is evolving and we need to evolve as well and become more accepting.
Keywords – legitimacy, children, live in relationships, inheritance, Hindu and Muslim law
“There can be no keener revelation of a society’s soul than the way in which it treats its children.”
– Nelson Mandela
Children are the building blocks of a society; they need to be protected from the evils, guided on to the right path and trained to run the nation. It is the children that take the nation ahead in terms to contemporary achievement. But, every country needs to re think that is it providing a safe environment for the children to thrive in and live a prosperous life?
With increasing pace of life, children are left neglected in the most important times. They are the sufferers of depression, drug abuse, suicide and many more social problems. We need dig deep into the root cause of such issue and eliminate the same to make this a world a better place for the children to grow and succeed. One such issue is of legitimacy in changing notions of marriage and family. The tag of being an illegitimate child is a torture to many children which hampers their growth at an early stage.
Revisiting the concept legitimacy will help us better understand the present scenario and the areas where there is a scope of transition.
Hindu law – overview of legitimacy
Marriage has been considered as a sacrament in Hindu religion, it is believed that no power in this world can break the bond between husband and wife. Hence, the children born out of the wed lock have been labeled as Legitimate. It is important to look at Hindu Marriage Act, 1955 and the conditions it lays down for a valid marriage in order for the children born out of such wedlock to be held legitimate.
It is a matter of fact that the child born out of a valid marriage will be legitimate and have all rights like that of inheritance, property, marriage and guardianship. These rights are however denied to the illegitimate child.
HMA, discusses the forms of valid marriage under section 5 and section 7, the conditions if unfulfilled then the child will be considered illegitimate. However, section 11, states the marriage that is void by nature. These include the marriage that is bigamous in nature, took place between the sapinda or prohibited degree of relationship. Section 12 also states the details of a voidable marriage.
Legitimacy of child in such circumstances is of greater importance. Section 16, discusses the conditions for legitimacy of child. Concept of legitimacy is not governed by any specific law but Hindu and Muslim law deals with the same in brief.
Hence, the children born from marriages that are void, annulled/voidable, gave rise to illicit relationship, children born to concubines are considered illegitimate.
Such children are unwillingly given a tag of being illegitimate without their actual fault.
The laws in Britain are firm enough to provide legitimacy to illegitimate child so that the child doesn’t falls to be the victim of the acts constituted by the parents. The Legitimacy Act, 1979 is referred to in case of ‘conflict of laws’. Section 2 and 3 of this act provides that legitimacy can be achieved when the conditions so forth mentioned are fulfilled. It states that the father’s domicile status at the time of birth is the single deciding factor, irrespective of the place of birth of the child.
The present act that in force is the Legitimacy Act, 1976 extends legitimacy of the children from parents who did not marry each other freely at the time of the birth of the child.
Legitimacy in India under Muslim Law
Muslim law got a different view on this concept; the acknowledgement of the father that the child is through a valid marriage is the only necessary condition to grant legitimacy to the child.
To cite, an important case of Muhammad Allahdad Khan, the court held that the illegitimacy of the child cannot prove the relationship of the parents unlawful. The mere acknowledgement of the father is not sufficient.
Since, India do not have a legitimacy law of its own, legitimacy of the child relies on the maintenance of the marriage.
Section 112 of the Evidence Act, 1872 states that the child born during the maintenance of the marriage or the termination period when the mother is unmarried shall be considered legitimate. Section 4 of the same act states the proofs that be approached to the court, one of them is DNA profiling.
One thing to be noted is that India is a country that does not possess a Uniform Civil Code because of the diversity imbibed in the roots. Individuals are governed by general laws but also personal laws that give importance to ones religion. Due to migration, many Indians go to different countries and people from all over the world settle down in India, which gives rise to issues regarding the legitimacy of children.
Live in relationships and Legitimacy
Live in relationships, also known as Cohabitation is a new changing trend in marriage and family structure. Two mature adults, agree to live together (with or without sexual intercourse) under the same roof and follow the obligations of husband and wife assigned to each other, without getting into the legal or religious framework of marriage.
Some countries like those of France and Canada require the registration of live in couples as well but this not the case in India.
We have no such laws to identify the status of children born out of Live in relationships, so this gives rise to the major area of concern about child rights and needs to e addressed. But the issues that come forth to the court are solved by precedents.
One of the important cases is that of SPS Bala subramanyam vs. Sruttayan. The supreme court in its judgment held that “If a man and woman are living under the same roof and cohabiting for a number of years, there will e presumption under section 114 of the Evidence Act that they live as husband and wife and the children born to them will not e illegitimate.” In its landmark judgment the court also mentioned that under article 39(f) of the Indian Constitution it is the responsibility of the state to provide the children with a healthy environment and to safeguard the interest of the children.
In Tulsi vs. Darghatiya, the court held that the children born from live in relationships will not e considered illegitimate, as long as the parents lived together for a notable period of time. It should not have been a ‘Walk in and Walk out’ situation.
Indian law protects the women under live in relationship y the virtue of Protection of Women from Domestic Violence Act 2005 to protect the rights of the female in live-in relationships. But the court played a good job by resolving the issues of illegitimacy of children born out of live relationships by giving weight age to its previous judgments.
The denial of the protection of the child will also lead to the violation of his fundamental right under article 32 and 21. The child has the right to life and personal liberty, the same concept has been discussed y the Kerala High court in the case of PV Susheela vs. Komalavally.
Despite so much of efforts y the court, one issues is still left unaddressed, that is the maintenance rights of children in respect to live in relationships. There is still an unequal treatment to children born to married couple and the children born to the parents under live in relationship. This gives rise to the violation of the article 14 of the Indian constitution.
Hindu law has the provision for inheritance of property to those who are legitimate, the can e the heirs to the joint family property. The illegitimate child can only inherit the property from his mother’s side.
Different notions of family
Family is the most basic social group; a child interacts with during his learning years. And hence, the family has major impact over his behavior and upbringing.
Two parent family
This is the most common and dominant type of family seen worldwide. It consists of two spouses who look after their children and live under the same roof. This type of structure is also known as monogamous society, where the spouses can e married to one person only. In many European countries and USA the laws are being legalized for the same sex couple as well. India still needs to develop in this arena.
One parent family
Again, India has no specific law that could specifically deal with single parenting, but after the demise or separation of one of the spouse, the other has to take care of the child and that child will also e entitled to inheritance, property, guardianship and other rights available to a legitimate child born within the wedlock.
Illegitimate son is not entitled to any share in the family property. He is not entitled to enforce partition against the family. Though, when the father must have been alive, may give a share of his property to the son that should be equal to the share of legitimate son.
In judgment by Supreme Court, Revanasiddappa v. Mallikarjun, the court held that Child born marriages that are void but innocent are entitled to the share in property of the father or the ancestor property.
Section 16 (3), is interpreted by the court as that legitimacy trends are changing in every society, including India despite the diversity and culture India posses, what was illegitimate in the past may be legitimate today. The concept of legitimacy comes from social consensus, in the shaping of which various social groups play a vital role, the HMA intends to bring about social reforms, and conferment of social status of legitimacy on innocent children is the obvious purpose of Section 16. This is law that is for the betterment of the society as whole. Its aim is to curb the social evils present in the society.
Parentage – an overview
Parenthood should not be forced; there are people who voluntarily come up to take care of the children even if they are not the biological parents. Same sex couple, who has been living happily, still encounters roadblocks from the society. Our society needs to grow a little more to accommodate such changing notions.
One needs to understand that parenthood cannot be governed by a particular sex or gender. Everyone who is a part of this nature, everyone who has been sent to this Earth by the grace of god is entitled to become a parent. Major drawback lies in the deep rooted ugly mentality of the masses, that really needs a makeover.
Recognition of parenthood is really important, one needs to know the intend behind rather than obligation. This also opens up scope for the same sex couples and the whole LGBTQ community.
In USA, the Immigration and Nationality Act, deals with the parentage of children belonging to different sex couples. The children born out of wedlock have to work on the different citizenship requirement.
Legitimacy of children in the present scenario is changing and needs to be addressed. Different notions of marriage and family interfere with the cultural of the country and are the reason for communal dispute. This causing a loss to the growth of the children. A separate law that could be just about legitimacy needs to come into force. People are gradually rising from old orthodox mentality. This change is something that can’t be implemented all at once. Different nations hold different view point on one single topic. Disputes arising in Live in relationships should be dealt separately. Hindu law Muslim law speak a little about child rights, be that legitimacy, guardianship, inheritance and fundamental rights. It is high time for the nation to accept and accommodate different types of marriage and family and co exist peacefully with that. Parenthood should not be a puppet in hands of those who do not value the lives of children. World is evolving and we need to evolve as well and become more accepting