This article has been written by Ashutosh Singh, a student of BA.LLB(Hons) at Amity Law School, Amity University, Kolkata. The article analyses the legitimacy and legitimation laws around the world and how ‘conflict of laws’ or ‘Private International Law’ are used to address the issues faced by the courts in relation to it.
According to Leon R. Yankwich, children are not illegitimate but the parents are illegitimate. This quote says it all.
Children become illegitimate because of the unlawful relationship of their parents. Yet both the society and the laws of legitimacy/legitimation in most parts of the world have discriminated against the illegitimate child and the rules for legitimation have been very strict. The illegitimate child never had the same privileges under the law as a legitimate child. Even under the personal laws, the right to inheritance of the illegitimate children and the legitimate children are not similar. But society has some people who are not only rational but also liberal in their outlook and do not attach any stigma to a child born out of wedlock. With their liberal outlook, the law on the matter has also undergone amendments to accommodate the illegitimate child’s rights.
Legitimate is a Latin word, meaning to make something lawful. It basically means adhering or conforming to the laws/rules. Saying that something is legitimate makes it right, gives it an authoritative or binding character. Legitimation is the noun form of legitimate.
From the word, legitimate comes legitimacy which means the power to be supported with logic and justification. There are far-reaching legal aspects regarding the status of a child in relation to the child’s parents. A child is considered legitimate if the child is born of lawfully wedded parents.“Lawfully wedded/wedlock” means a lawful marriage to be customary, statutory, or islamic.
It means something which is not authorized by law or illicit. An illegitimate child is one that is not born from lawful wedlock meaning that the parents are not validly married to one another, be it customary, statutory, or islamic. This article will explore the various laws which deal with legitimacy, legitimation and the role conflict of laws regarding the same.
Conflict of laws/Private International Law
‘Conflict of laws’ denotes the difference in the laws which arise out of two or more jurisdictions when applicable to a dispute/conflict at hand. The dispute/conflict can be between the federal and state laws or laws of two states or even between laws of different countries. What the result of the case is, depends on the law which is selected to resolve the dispute/conflict. In Indian Law, the branch which is in contrast or distinction to the familiar local or internal law of India regarding cases which have something to do with a foreign law element is known as ‘private international law’ or ‘conflict of laws’. In the situation of conflicting laws, what is perplexing is the decision about choosing a law to apply.
The courts are facing this dilemma and therefore follow certain procedures to help them make up their mind on the law applicable to decide the case. This procedure is known as characterization or classification in legal jargon. In case of a conflict, the court has 2 choices for deciding which law will apply:
- Law of the forum (Lex fori): Lex fori is the choice mostly when the conflict in laws relates to a procedural matter.
- Law of the place (Lex loci): On the other hand, courts mostly go by Lex loci or the law of the place when the conflict in laws pertains to a substantive matter, meaning the place where the cause of action arose.
In the litigation of a case where there is a conflict of laws and it is necessary to reconcile the differences between laws of different geographical areas, choice of law is a procedural stage. As a result of this procedure, the court of one jurisdiction is required to apply the law of another jurisdiction generally in lawsuits of a tort, contract of family courts. Different sets of rules are applicable to federal courts and state courts because the Constitution limits the jurisdiction of federal courts and hence the federal courts are required to follow a set of rules, complex in nature, for ascertaining the right law applicable whenever there is a conflict of law.
The requirement of Private International Law
The requirement of Private International Law arises because different countries have their own set of internal laws which are in conflict with each other. Differences also exist between the Private International Laws of different countries which results in conflicting decisions given by the courts of different countries on the same matter.
The solution to this problem lies in the unification of the private international laws of the different countries and need for rules for conflict laws which the courts apply to resolve the problem. Having said that, the rules/principles of private international may be as follows:
- It forms a branch of national law of that country.
- The individuals, whether citizens or not, are governed by it.
- It always has a foreign element of law in these cases.
Rules of conflict of laws are basically for the need to do justice. For example, it would be unjust if a dispute over a case involving a German element of law (one of the parties to the case has a reason for applicability of foreign law element) is decided by an Indian court applying the rules of law enforceable in India just because it is an Indian court which is deciding the matter. The basis for applying the rules of conflict of laws is the Doctrine of Comity, meaning the accepted rules of mutual conduct between states. In the Indian Legislature, which recognises the rule of comity is found in Section 11 of the Foreign Marriages Act, 1969. These rules must raise the following issues:
- Whether the court deciding the matter has the jurisdiction to do so?
- If there is a foreign element of the law, then is it enforceable?
- Which system of laws should be chosen?
- What is the course of action when a court is faced with such a dilemma and serves justice at any cost?
Conflict of Laws in India
Private International Law agonises from a curious collocation. Don’t get confused by the term ‘International’ because this pertains only to the foreign law element. Though it has an international facet which is essentially a branch of municipal law and thus every country has its own Private International Law dealing with practically every branch of law and thus having a very wide ambit.
However, in India, the statutory provisions of Private International are few and very rare. They are also not codified but disseminated in different enactments such as:
- The Civil Procedure Code, 1908
- The Indian Contract Act, 1872
- The Indian Succession Act, 1925
- The Indian Divorce Act, 1869
- The Special Marriage Act, 1954, etc.
In addition, some rules have also been developed by judicial decisions.
Illegitimacy as a concept
The conflict of Law relating to illegitimacy can be understood by the following example. Let’s assume that an illegitimate child is born to an unmarried couple in a State X where they are domiciled. So, the parents move to State Y where they follow some procedure for legitimating the child according to the law of the jurisdiction of State Y. After that, the parents move to the forum and unfortunately, the father of the child dies, leaving the child with some property in the forum. The child claims a right of inheritance through his father by proving that he has legitimacy according to the law of State Y and asks the court to take into consideration his foreign created status of legitimacy and he is given full effect in the forum. The ‘Conflict of Law’ obviously arises in this case as the legitimacy grating statute of the place X, Place Y and the forum is different. So here, the act of the birth itself is the only action necessary to make a child legitimate in relation to his natural parents.
Illegitimacy under English common law
If one looks at a list of famous people in the past one will find that many renowned and prominent individuals throughout history were born to unmarried women and suffered embarrassment and shame as a result. To name a few of them:
- Leonardo da Vinci,
- Alexander Hamilton and
- Albert Einstein
Since Einstein and his fiancé had a daughter out of wedlock; on the insistence of his fiancé they kept residences in separate cities basically to avoid the humiliation of having the child before getting married. The laws of England were the harshest in comparison to all the laws that governed children born to unmarried women. Whereas many countries granted legitimacy to the child if the parents married, England did not. Before the English conquest of Wales, a bastard was a child not acknowledged by its father. If the child was born in or out of wedlock and if the father acknowledged the child then the child enjoyed the same legal rights, including the right to share in the father’s estate. But after England’s conquest over Wales, the English laws were applicable in Wales and things changed.
Under the law in England, a bastard couldn’t be an heir to the real property, and couldn’t be legitimized by the subsequent marriage of his father and mother but under civil law the position was different. But in the situation where there are 2 bastard children, and parents marry subsequently then the older illegitimate son becomes the owner of his father’s lands and after his death, the property is passed on to his heirs. But the younger bastard/illegitimate child cannot stake a claim to the father’s land. The child was legitimized once the parents married each other subsequently, and when they are not married to someone else under the Legitimacy Act, 1926 of England. The area of legitimization extended with the coming of the Legitimacy Act, 1959 which now permitted legitimization even if the parents had married other people in the meantime. Even marriages which were presumed incorrectly by parents to be valid were recognized.
Both the 1926 and 1959 Acts, however, didn’t change the succession laws in Britain. A bastard was now allowed to inherit the property of his parents. A child of a putative marriage was also considered legitimate.
Illegitimacy under Hindu Law
Under Section 5 and 7, the conditions of marriage are laid down and if these conditions are contented then it is considered as a valid marriage under Hindu Marriage Act, 1955. The child born out of such a marriage is also considered as legitimate. The marriage can be declared as void or voidable under Section 11 and 12 of the Hindu Marriage Acts, 1955 if the conditions given as per Section 5 of the act are not fulfilled.
The definition of a void marriage is given under Section 11 of the Hindu Marriage Act, 1955, which says that if the marriage does not fulfil the conditions laid down in clause (i), (iv) and (v) of Section 5 of the Act, then, the marriage will be considered as null and void. The child who is born out of this marriage will be considered as an illegitimate child. The definition of voidable marriage and its grounds are given under Section 12 of the Hindu Marriage Act, 1955, which says that if a marriage is annulled under any ground of Section 12 of the Act, then, the child born out of this marriage will be considered as an illegitimate child. Also, if at the time of the marriage if proper marriage ceremonies are not performed then such a marriage will not be valid and the child born will also be considered as illegitimate. Therefore, the children who fall into the category of illegitimate children under Hindu Law are as follows:
- Children born from marriages which are void,
- Annulled/voidable marriages resulting in children,
- Illicit relationship from which children are born,
- Children born from a relationship with concubines, and
- Children born of invalid marriages for want of proper ceremonies.
The rule of legitimacy under Hindu law depends on the marriage. How parents behave determines the social status of the child. If it is a valid marriage, then the child is also considered legitimate, but if the parents have acted in a foolish manner, having entered into an invalid marriage and conceiving a child without even having a marriage relationship, such a child is considered as illegitimate. The innocent child is labelled with such a tag without having any fault of its own and has to suffer the consequences of its parent’s actions.
In traditional English Common Law, legitimacy can be defined as the status of a child born from a legal marriage or the status of a child who is conceived before the parents are legally divorced. There was a time when the status of legitimacy for a child born was a big thing and the news of an illegitimate child did not seek societal approval and was a thing to be pushed under the blanket. In modern times, conceiving a child out of wedlock is not such a big thing and a matter of personal preference rather than a legal and social problem. However, many people are ignorant about the legal implications of the same. Subject to local laws, a child’s rights can be affected when it comes to rights of inheritance of the child to the putative father’s property, right to bear the father’s name or ancestral title.
Legitimacy in England
Fall of authoritarian regimes, sexual independence and revolution of the 1960s and 1970s, the economic independence of women has resulted in the importance of legitimacy being reduced significantly in the western countries. Earlier the illegitimate child was called a ‘bastard’ and now use of the term is akin to abuse and considered offensive.
If the parents of a child born out of wedlock married each other subsequently, then the Legitimacy Act 1926 of England and Wales legitimized the birth if they had not got married to someone else in the meantime. A bastard was allowed to inherit on the intestacy of his parents by the Family Law Reform Act 1969 and legitimacy was granted by the Canon and Civil law to children of putative marriages. Generally, the children from polygamous marriage were not considered legitimate but courts in England acknowledged their legitimate status if the law where the parents were domiciled considered them legitimate. This was seen in the case of Re Bischoffsheim but the judgement was severely criticized because of the difficulty of its application where the domicile of the parents was different.
The practice of refusing the right to inherit the father’s property to an illegitimate child has now evidently undergone a change in England. The laws have so changed that if an applicant has been domiciled in England or has resided throughout a period of one year from the date of commencement of the proceedings in England, then he/she is declared legitimate. Under modern law, a child born after artificial insemination is considered legitimate even though the donor is not the husband unless it is proved that the insemination took place without the husband’s consent. The rule, however, is not applicable when the marriage is between a woman and a transsexual person. According to the new laws, the unmarried father has a parental duty and responsibility to look after the child if his name appears on the birth certificate as the father of the child. This can be seen in Northern Ireland since April 2002, in England and Wales since December 2003 and from May 2006 in Scotland.
Legitimacy in India
The legitimacy of a Child under Muslim Law in India
Under Muslim law in India, the basis of legitimacy is the paternity of a child and that depends upon the marriage, that is, the legitimacy of a child is recognised only by direct or indirect proof of the existence of marriage between the father and the mother of the child. When there is no direct proof of the existence of marriage which is lawful it can be established by the following:
- Acknowledgement by a man that a woman is his wife;
- When a man acknowledges that he is the father of the child;
- When a man and woman cohabit for a long period of time.
The object of a Muslim marriage is to legalise intercourse resulting in children. It was observed in the case of Habibur Rahman v. Altaf Ali, that legitimacy is recognised of a son if he is born of a man and his wife and otherwise the offspring is considered from an illicit relationship. The term wife essentially signifies through marriage but maybe without any ceremonies having taken place and an indirect proof will also suffice in the absence of direct proof.
It is to be noted that recognition here means a pronouncement establishing paternity. Here, the marriage exists but the child’s paternity is questionable as the alleged marriage can’t be proven by a direct proof as in Muslim law. Therefore, an acknowledgement cannot legitimatise a child who is proven illegitimate.
The legitimacy of a child under Hindu law in India
Rules for the validity of the marriage under Hindu law is laid out in Sections 5 and 7 of the Hindu Marriage Act, 1986 and if unfulfilled, then, a child born out of such a marriage is considered illegitimate. Section 11 of the Act states that a marriage is void if it is bigamous, if the marriage has taken place between the sapindas or when the marriage takes place between persons falling in the prohibited degree. Section 12 of the Act gives provision for reasons for voidable marriage.
Thus, in the case of void/voidable marriage, if a child is born or conceived before the decree of annulment has been passed then such a child will be legitimate. But, if the decree of annulment has been passed and the child is conceived after that, then, the child would be considered illegitimate under Section 16 of the Act. Under Hindu law, a child born out of a lawful marriage has all the rights be it in guardianship, maintenance, property, and inheritance. The same rights and privileges are not accorded to an illegitimate child.
In the case of Revanasiddappa vs. Mallikarjun, the Supreme Court maintained that the constitutional values protected in the Preamble of the Indian Constitution concentrate on the concept of equality of status and dignity of an individual. The Apex Court added that the Court should remember that a relationship between the parents may not be lawful but a child born out of such a relationship has to be viewed in isolation of the relationship of the parents.
Concept of legitimation
Legitimation is a process by which an illegitimate child is given legitimacy. The concept of legitimation is, however, not recognised in India neither in Muslim law nor in Hindu law but it is recognised by Portuguese law in Goa and the Legitimacy Act of 1926 in England etc.
Countries across the world have more lenient laws now when it comes to legitimacy and also have processes in place where legitimacy can be granted to an illegitimate child, even if parents are unmarried or the parents marry subsequent to the birth of the child. With so many different laws of different jurisdictions coming into play in the matter, there is bound to be the question of applicability of which law. This is where ‘Conflict of law’ comes into the picture and helps decide which system of law and method of legitimation is more effective. The law ultimately founded by Re Grove, in the case of Boye, is that unless the father is domiciled both at the time of the child’s birth and also at the time of the subsequent marriage in a country whose law allows this method of legitimation by subsequent marriage, it is not recognised by the courts in England. In other words, Section 2 and Section 3 of the Legitimacy Act, 1976 provides that this legitimation is effective from the date of the marriage provided the other conditions are met. What this in effect means is that time of the childbirth is not so important (Sine qua non) but the father’s domicile status at the time of the marriage is the single deciding factor.
A long fight and campaign for the rights of the unmarried mother and her child resulted in the Legitimacy Act, 1926 to come into force in Britain. The legitimacy was awarded to the child on the subsequent marriage of the parents only if they had not married someone else in the meantime meaning that the relationship was not adulterous. The Act was further amended and called the Legitimacy Act, 1959 which additionally extended legitimacy to children from parents who were not free to marry each other at the time of the birth of the child ending discrimination against children born from an adulterous relationship. The present Act in force regarding the matter is the Legitimacy Act, 1976.
Under Muslim law, acknowledgement by the father that the child is his through a valid marriage is enough provided that legitimacy is possible.
In the case of Muhammad Allahdad Khan, it was the opposite. Here the court said that a child is illegitimate if the marriage/relationship between its parents cannot be proved or it is unlawful. A mere acknowledgement by the father is not sufficient to grant the status of legitimacy to the child.
In India legitimation is not a practice. We do not have any legitimacy Act and a concept of legitimation. Legitimacy is a status that the child inherits only by virtue of being born during the maintenance of a marriage between the mother and any man, or within 280 days after the termination/annulment of the marriage if the mother is unmarried. Except when it is proved that the child was conceived when the parties to the marriage were not in any physical contact during the time of conception of the child. Provisions for Presumption of paternity under Section 112 of the Evidence Act, 1872 provides for the legitimacy of the child born during the maintenance of a lawful marriage or within a certain period after the termination of the marriage only if the mother of the child does not remarry. Section 4 of the Act gives the presumption which can act as the conclusive proof mentioned under this Section. Nowadays there are many ways of establishing paternity using scientific methods such as DNA profiling.
Every child born out of wedlock faces an indelible status of illegitimacy and getting branded as bastards for life, the world over. Many countries following the doctrine expressed in the Statute of Merton have rejected it calling it archaic. In the modern era, the courts have recognised the potential of granting a legal status of full legitimacy, disregarding the social environment in which they function. In continuance of this much needed social end, courts have endeavoured to apply conflict of laws principles in such a way as to amend the effects of the status of the illegitimacy of a child. Thus, the courts recognize the domicile of the parents and give full effect to acts of legitimation despite the fact that the status of legitimacy arose out of the subsequent marriage of the parents or acknowledgement of paternity of the child.
With the increasing global movement, global citizenship and migration of the people the issue relating to legitimacy and legitimation has become a very complex issue and the reason for the dilemma faced by many courts. England has done away with the archaic laws regarding legitimation and has adopted the lex domicile and now foreign orders on legitimacy and legitimation are recognized in England. Difficulties arise in India also because the applicable personal law relating to these matters is determined by the individual’s religion. Indians are found in most countries where they do not have personal laws based on religion and they have a uniform civil code applicable to all. However, in India, the decisions are majorly influenced by personal laws and legitimation, thus still doesn’t have recognition.
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