Law of Legitimacy of Children


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 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.


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