In society, the status of children, whether they are legitimate or illegitimate, has a great impact on their lives. The Hindu Law has never considered the illegitimate child as filius nullius and recognized the relationship with both the parents. The dasputra (illegitimate child) was given a definite status in his father’s family. But his status was inferior to the aurasa son (legitimate), as he had no right of inheritance or survivorship in presence of the legitimate child. So, a child born out of wedlock considered illegitimate, and born within wedlock is legitimate.
The word legitimacy derives its origin from the Latin word ‘legitimare’ which means to make lawful/ the power to support with logic and justification. There are wide-ranging legal aspects regarding the status of a child in relation to the child’s parents. Legitimacy is an important concept in our society. There is a social stigma for a child that is born out of premarital or extra-marital sexual relationships, as they are considered offensive relationships.
It says that,
- a child born within lawful wedlock (even just after the marriage) or
- a child born within 280 days of the dissolution of marriage by death or divorce, but the wife should remain unmarried; shall be considered as a legitimate child.
Legitimacy under Section 16 of the Hindu Marriage Act
Section 16 of the act confers the status of legitimacy on the children whether born out of the void or voidable marriage through legal fiction. It states that-
- a child born out of void marriage (grounds of void marriage mentioned U/s 11), shall be a legitimate child as they have born out of lawful wedlock.
- If the court grants a decree of nullity in respect of a voidable marriage (grounds mentioned U/s 12), the child conceived before or after the decree shall be a legitimate child.
So, the section comes into play when the marriage is being solemnized between the parties. We cannot invoke the section in case of no solemnization of marriage.
Position of an illegitimate child under modern Hindu Law:
- Maintenance- both the parents’ mother and father are under an obligation to maintain the child until his/her minority.
- Inheritance- the child cannot inherit the property of his father but can inherit the property of his mother.
- Joint family property and partition: the child has a right to have a share in his father’s personal property only. Section 16(3) clearly mentions that the child cannot have any share in the ancestral property except his father’s personal property.
- Guardianship- the mother is the natural guardian of the child. After the mother, the father becomes the natural father.
- Adoption- the mother can give the child in adoption. So, there is no bar to adopt an illegitimate child.
The legitimacy of Children Born out of ‘Live-in-relationship’
The Supreme Court considers this issue in the case of ‘D.Velusamy vs. D. Patchaiammal’. The court held that in case of continuous cohabitation for several years, the law presumes in favor of marriage. Section 114 of the Indian Evidence Act will be applicable. Accordingly, they will be husband and wife. And, the children born out of such marriage or relation shall be legitimate.