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This section has been recasted by the Marriage Laws (Amendment) Act, 1976
with intent to remove difficulties in its interpretation. Prior to the above
amendment, the language of the section showed that a decree of nullity of
marriage was necessary under Sections 11 and 12, before a child begotten or
conceived before that decree could be given the status of legitimate child.
Where a decree was not granted under Section 11 of the Act, the provisions of
Section 16 of the Act did not confer legitimacy on the child and if a third party
successfully challenged the validity of the marriage in other proceedings on the
ground that it was void, the children of such marriage would still be illegitimate.
The lacuna has now been removed by the Marriage laws (Amendment) Act,
1976. The section now provides:
(1) Notwithstanding that a marriage is null and void under Section 11, and child
of such marriage who would have been legitimate if the marriage had been
valid, shall be legitimate, whether such child is born before or after the
commencement of the Marriage Laws (Amendment) Act, 1976, and whether or
not a decree of nullity is granted in respect of the marriage under this Act and
whether or not the marriage is held to be void otherwise than on petition under
this Act.
Now, under the section any child of a void marriage, who had been legitimate if
the marriage had been valid, shall be legitimate, whether or not a decree of
nullity of marriage is granted in respect of that marriage under this Act and
whether or not the marriage is held to be void otherwise than on petition under
this Act.
There is a distinction between the above two positions. Where the marriage is
annulled at the instance of either party, the children born of such marriage are
by the operation of this section to be deemed to be the legitimate children for all
intents and purposes except that by virtue of this proviso to the section they
cannot claim any right in or over property of any person other than the parents.
But if the decree of nullity is refused or it is not opted by either party, the
children of the parties to marriage would be still legitimate and they would not
be subjected to the limitations of clause (3) of the Act, i.e., they would be
entitled to inherit the property of their parents as well as of any collaterals of the
parents or descendants of the parents either:
Sub-section 3 of Section 16 of the Act lays down that the children born of void
and voidable marriage, who have acquired the status of legitimate children by
virtue of the provisions of sub-sections (1) and (2) of this section, cannot claim
to succeed to persons other than the parents. They have no right to succeed to
the collaterals of the parents or ascendants of the parents either.
In Shanta Ram v. Smt. Dargubai, the Bombay High Court observed that the
children of void marriages would be deemed legitimate, irrespective of the
decree of nullity although they would not acquire the right to succession to the
same extent as is available to the children of valid marriage.
But the legitimacy conferred upon such children under Section 16(3) entitles
them to claim right only in the property of their parents which must be separate
property of the parents not the coparcenary property in which father is allotted
only one share. Such children would not be treated as coparceners and they
would not acquire the right of partition.
In Bhogadi Kannababu & others v. Vaggina Pydamma & others, the Supreme
Court held that the children of void marriage would be deemed legitimate
because Section 16 of the Act deals with legitimacy of children of void and
voidable marriage, and sub-section (1) of Section 16 of the Act clearly says that
under these circumstances the illegal children are entitled to inherit the property
with first wife.
Where a child was found to be at the time of marriage with the contact of a
person other than the husband and the husband later on obtains a decree of
nullity on this account under Section 12 of the Act, such child cannot be given
the benefit of Section 16 of the Act. Only the child concerned and born of void
and voidable marriages with the contact of the husband could be deemed to be
legitimate child of such parents.
(c) Section 16(1) now stands on its own strength and operates independently of
other sections with the result that is constitutionally valid as it does not
discriminate between illegitimate children in similar circumstance and classifies
them as one group for conferment of legitimacy. Section 16 in its present form,
is, therefore not ultra vires.
Illegitimacy under Hindu Law
Introduction
There are no illegitimate children only illegitimate
parents.
Leon R. Yankwich
Under all societies in the world, the status of a child i.e.
whether it is born legitimate or illegitimate has great
consequence. Both in the contemporary society and in the
historical society there is classification of children as
legitimate and illegitimate.
Since time immemorial, there is a social stigma surrounding a
child who is not born to legally wedded/married parents. The
illegitimate children never enjoyed equal status along with the
legitimate children. The society always discriminated the
illegitimate children in many ways. Not only the society
discriminated them, even law has discriminated them. Law
has not given the illegitimate children the same legal rights as
the legitimate ones are given. Under almost all the personal
laws the right to inheritance of the legitimate children and the
illegitimate children are not the similar. Illegitimacy carried a
strong social stigma among all religions practised in the
world.[i]
Illegitimacy as defined by the Oxford Dictionary means, (Of
a child) born of parents not lawfully married to each other.
This means illegitimacy means when the parents of a child are
not lawfully wedded, the child will be considered illegitimate.
Premarital sexual relationship and extramarital sexual
relationship are considered to be a sin in almost all the
societies. So the resultant child of such offensive relationship
is also kept in a state of sin. It is considered illegitimate.
Many religions also view premarital or extramarital sexual
relationship as an offensive relationship. Almost all the
personal laws in India are religion-based and so even under
law, the children born out of such offensive relationship are
not given equal status with the children born out of a lawful
wedlock.[ii]
Illegitimacy as a concept
In medieval Wales, a bastard was defined simply as a child
not acknowledged by its father. All children, whether born in
or out of wedlock, which were acknowledged by the father,
enjoyed the same legal rights, including the right to share in
the fathers estate. After Englands conquest of Wales, English
law came to apply in Wales.
Under English law, a bastard was unable to be an heir to real
property, in contrast to the situation under civil law, and could
not be legitimized by the subsequent marriage of father to his
mother. There was one exception: when his father
subsequently married his mother, and an older illegitimate son
(a bastard eign) took possession of his fathers lands after
his death, he would pass the land on to his own heirs on his
death, as if his possession of the land had been retroactively
converted into true ownership. A younger non-bastard brother
(a mulier puisn) would have no claim to the land.
The Legitimacy Act 1926 of England and Wales legitimized
the birth of a child if the parents subsequently married each
other, provided that they had not been married to someone
else in the meantime. The Legitimacy Act 1959 extended the
legitimization even if the parents had married others in the
meantime and to putative marriages which the parents
incorrectly believed were valid. Neither the 1926 nor 1959
Acts changed the laws of Succession to the British throne.
The Family Law Reform Act 1969 (c. 46) allowed a bastard to
inherit on the intestacy of his parents. In canon and in civil
law, the offspring of putative marriages have also been
considered legitimate.[iii]
The courts in India decide1 a child to be legitimate or
illegitimate depending on the following criteria:
1. A child born within lawful wedlock is a legitimate child
2. At the time of the birth of the child, if the father and
mother of the child are legally married to each other, the
child is a legitimate child. A child born outside the lawful
wedlock is an illegitimate child.
At the time of the birth of the child, if the father and mother
of the child are not legally married to each other, the child is
an illegitimate child.
Conclusion
The Indian Society is a metaphysical society and so, it is
going through a transformation stage which consists of two
broad categories of people with two distinct ideologies. One
of the groups believes in the orthodox methods of Hindu
religion where having an illegitimate child is a taboo and
being one is a bigger stigma.
The other group in the society consists of people who are
rational and liberal in their outlook and do not consider
illegitimacy as a stigma. They do not blame an illegitimate
child for his/her existence instead blames the irresponsible
couple. The laws in the society are also being amended
accordingly as the time and the situation demands.
There is a need to be more liberal towards the illegitimate
children and the laws should also be amended in such a way
that they have the best interest of all the people at heart .
[i] http://www.supremecourtcases.com/index2.php?
option=com_content&itemid=5&do_pdf=1&id=22276
[iii] http://en.wikipedia.org/wiki/Legitimacy_(law)#History
http://www.supremecourtcases.com/index2.php?
option=com_content&itemid=5&do_pdf=1&id=22276
[vi] http://www.shareyouressays.com/117169/comprehensive-essay-on-the-illegitimate-
children-under-hindu-law
[viii] http://www.legalblog.in/2011/04/right-to-property-of-illegitimate-child.html