For matters concerning children, and their succeeding rights over parental property is being questioned on the basis of legitimacy or illegitimacy. Legitimation is allowed to convert the status of illegitimacy ti legitimate. Adoption also assures the welfare of the children.
2. MEANING OF LEGITIMACY & LEGITIMATION :-
Legitimacy means the status acquired by a person who is born in lawful wedlock,
(i.e. born of parents whose marriage was valid at the time of his birth).
If the marriage is void, the children born out of it are considered to be illegitimate.
Legitimation means that a child who is illegitimate, at the time of birth acquires
the status of a legitimate person as a result of some act that occurs after the date of
its birth, such as the subsequent valid marriage of its parents.
Even though in the matter of succession both legitimate & illegitimate child is
given equal rights in the matter of succession by the enactment of the Family
Reforms Act of 1969, it contains a number of saving provisions under which the
distinction between legitimate and illegitimate children continues to be important.
Being a legitimate, legitimated, or adopted becomes relevant not only in the field
of succession, but also in such areas as domicile, nationality and the custody of
minor children.
3. LEGITIMACY :-
A child is, or is presumed to be, legitimate if it is born anywhere in the world in
“lawful wedlock”. Illegitimacy is a state which not only imposes a social stigma, but
deprives a person of rights of succession to the estate of his/her father.
Position in England :
The system and the attitude of denying an illegitimate child the right to inherit his
father’s property has now markedly changed in England. Courts can, under the law,
declare a person to be legitimate if the applicant is, when he commences the
proceedings, domiciled in England, or was, for throughout a period of one year
before the commencement of the proceedings, habitually resident in England.
A child conceived before marriage is regarded as legitimate if born after the parents
were married, and so also a child conceived before but born after the parents were
divorced. Child born after artificial insemination is legitimate even if the donor is
not the husband; unless it is proved that the husband did not consent to the
insemination.
This rule only applies where the parties to the marriage are Man and Women and, as
decided in J v. C [2007] this rule does not apply where the women marries to a
transsexual person.in England.
4. A child not born in lawful wedlock would, however, be regarded as
legitimate in England if, and only if, it is legitimate by the law of the
domicile of both the parents at the time it was born.
Traditionally, the children of polygamous marriage is not regarded as
legitimate, however, in England, they are regarded as legitimate if they
are so regarded by the law of the country where the parents were
domiciled when the child was born.
In Re Bischoffsheim[1948] a single Judge has laid down the rule that
English courts would recognize the status of legitimacy if the child is
regarded as legitimate by the law of the domicile of the parents at the
birth of the child. This judgment is severely criticized as it is difficult in
application where parents have different domiciles. However, a step
forward is taken by the Law Commission in England to answer the
difficulties i.e. it suggested that the lex domicilii to be adopted should be
that with which the child was most closely connected.
5. Under the rule of “putative marriages”, children of a void marriage are
recognized as legitimate if either of the parents believed that the marriage
is valid. This rule is also recognized by the Legitimacy Act 1959 subject to
the provision that the father should be an English citizen. Question often
arises as to whether this rule will be applicable where the domicile country
recognizes this rule and suggestions are often in affirmative.
Position in India :
In India, “Legitimacy‟ is a status of a child being 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 he could have been conceived, his birth is treated as a
conclusive proof of he being legitimate.
Under Section 112 of the Indian Evidence Act, 1872 (herein after referred
to as ‘the Act’ ), if the applicant is domiciled in India on the date of
application, the Indian court has jurisdiction to grant a declaration that he is
the legitimate child of his parents.
6. Though there is no decision of the Supreme Court on the point, it has been
held that illegitimate children cannot succeed to their father’s estate on
intestacy. but can succeed mothers‟ estate. If the child has born of a marriage
which is null and void under section 11 or 12 of the Hindu Marriage Act,
1955, the child is deemed to be legitimate and consequently can succeed to
the estate of the father on intestacy
In Mahomedan law, applicable to Sunnis governed by the Hanafi School,
illegitimate children cannot inherit from the father, but can from the mother.
But in case of Shias, the Illegitimate children can never inherit.
Illegitimate children cannot succeed to property on intestacy under the
Indian Succession Act, 1925, Christians, Parsis and other religious groups
are governed under this statute.
LEGITIMATION :
Legitimization is a process to recognize the child of being legitimate.
Subsequent Marriage between the parties, Acknowledgment by the man etc.
are the examples of legitimation.
7. Position in England :-
English courts had jurisdiction to entertain proceedings for a declaration that
a person was legitimated, or not if, at the date the proceedings are
commenced, the applicant is domiciled in England or had been habitually
resident in England for at least one year.
The role of Conflict of Law is to choose the system of law which shall
determine whether legitimation by this method is effective or not. The rule
finally established at common by Re Grove [1888]after some hesitation in
Boyes v. Bedale [1863] is that a foreign legitimation by subsequent
marriage is not recognized in England 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.
The present law is that, where the parents of an illegitimate person marry,
the marriage shall, if the father is at the date of the marriage domiciled in
England and Wales, render the person, if living, legitimate from the date of
the marriage.
8. With regard to persons who are not domiciled in England and Wales, section 3
of the Legitimacy Act 1976 provides as follows: “…where the parents of an
illegitimate person marry one another and the father of the illegitimate person
is not at the time of the marriage domiciled in England and Wales but is
domiciled in a country by the law of which the illegitimate person became
legitimated by virtue of such subsequent marriage, that person, if living, shall
in England and Wales be recognised as having been so legitimated from the
date of the marriage notwithstanding that, at the time of his birth, his father
was domiciled in a country the law of which did not permit legitimation by
subsequent marriage.”
This law discards the rule that the father’s domicile at the time of the child’s
birth is sine qua non, instead the law of the father’s domicile at the time of the
marriage is the sole decisive factor.[Heron v. National Trustees Executors and
Agency Co of Australasia Ltd [1976] VR 733]
9. Position in India :
Indian law, whether Hindu law or Muhammadan law, only recognizes the
concept of legitimacy of a child and not of legitimation. When there is any
doubt as to legitimacy of a child, under Muhammadan law the
acknowledgment by the presumptive father is the proof that the child so
acknowledged is the legitimate child of the presumptive father, provided that
legitimacy is possible.[Sadik Husain Khan v. Hashim Ali Khan(1916) ILR 38
All 627, PC]
In Bibi Nanyer – Omissa, even in the absence of evidence of marriage
between the parties, the Privy Council on acknowledgement declared the
child to be legitimate. But the Muslim scholars criticized this judgment and
have favoured Muhammad Allahdad Khan v. Muhammed Ismail Khan
(1888) where the court held that a child whose illegitimacy is proved beyond
doubt, by reason of the marriage of its parents being either disproved or
found to be unlawful cannot be legitimatized by acknowledgment.
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, legitimation is recognized.
10. Main methods of Legitimation :
(1) Subsequent marriage (legitimation per subsequens matrimonium)
(2) Legitimation by the recognition given by the child’s father (subsequent
acknowledgement of paternity)
(3) Legitimation by adoption.
ADOPTION
The concept of adoption is by which a minor is brought permanently into the family
of the adopter.
The legal systems of different countries differ widely as to the objects underlying
adoption, the method by which adoption is to be made, the condition to be satisfied
for valid adoption and consequently adoption may give rise to complicated
problems in private international law.
In Roman law and Hindu law, adoption was not conceived as a mode of legitimating
illegitimate children.
11. Their only aim of adoption was to mitigate the hardship of the childless by legally
providing them with children. Today, there are other dominant objects, for example, to
provide a home and parents to helpless and destitute or unwanted children.
Under various English Adoption Acts, no adoption can be made without an adoption
order from a competent court and the court will not pass as adoption order unless it is
satisfied that proposed adoption is for the welfare of the child. Before an application is
made to the Court, the child must have been in care and custody of the proposed adopter
continuously at least for a period of three months.
Jurisdiction of English court to pass adoption orders:
English courts have jurisdiction to make an adoption order if: (1) the applicant is
domiciled in England or Scotland and (2) If the applicant and infant reside in England.
In exceptional cases the competent court can make an order of adoption although the
applicant is not ordinarily resident in England. It may be noted that there is no
jurisdictional requirement that the infant must be domiciled in England. This is so
provided because otherwise it will render adoption unduly difficult and expensive.
It is not easy to prove domicile in the case of infants who are strays or whose natural
parents cannot be traced.
12. Should the foreign Lex domicile of the infant be considered ?
In Re B [1968 Ch.204)
In this case the applicant domiciled in England applied for an adoption order in
respect of an infant who was the legitimate child of an English mother and a Spanish
father domiciled in Spain. The child’s domicile of origin was therefore Spanish and
the question was whether Spanish law should be taken, into consideration in
disposing the application for an order of adoption.
The court held that English court has jurisdiction to make an adoption order
although by the law of the infant’s domicile, such an adoption cannot be made. At the
same time, the court is free to take into account the law of the infant’s domicile in
considering whether the proposed order will be for the welfare of the infant.
Recognition of Foreign Adoption
Till 1964, English adoption Acts contained no provision for recognition of
adoption effected in foreign countries. But now it provides rules for recognition of
foreign adoption, and grounds on which recognition may be denied. [Sec. 4 to 6 of
Adoption Act 1968].
13. Adoption in Indian Law
Although there is no general law of adoption, we have some statutes regulating it.
Since adoption is legal affiliation of a child, it forms the subject matter of
personal law.
The Hindu Adoptions and Maintenance Act, 1956 is one of the major act in this
regard.
Muslims, Christians and Parsis have no separate adoption laws and have to
approach court under the Guardians and Wards Act, 1890.
Foreigners who want to adopt Indian children have to approach the court under
the aforesaid Act. In case the court has given permission.
Along with the aforesaid Acts, The Juvenile Justice (Care and Protection of
Children) Act, 2000 and its recent amendments, ensures that the adoption has
been done for the welfare of the child.
In India, now the adoptions are regulated by CARA (Central Adoption Resource
Authority. It specifies the eligibility conditions, processing steps, documentation,
costs, court processes, foster care conditions, issuance of birth certificates and
post adoption follow ups.
