DJN Blogs

Tanya Singh, JEMTEC School of Law
Date: 15.12.2021
REVISITING THE CONCEPT OF LEGITIMACY OF CHILDREN IN THE BACKDROP OF CHANGING NOTIONS MARRIAGE, FAMILY AND PROCREATION RIGHTS
Abstract
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
Introduction
“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[1],
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[2],
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[3].
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[4],
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.
Joint family
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[5],
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.
Conclusion
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
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