Legitimacy of illegitimate children – Juhi Bhutani

“There are no illegitimate children – only illegitimate parents.”– Leon R. Yankwich. The above
quote gives an insight as to how the so called ‘bastards’ have to be treated as a heritage from the
LORD, the fruit of the womb a reward. Since days of yore the misbegotten children are treated as
virtual outlaws of society. They are considered a blot and a blemish on the most sacred institution
of marriage. A prejudice always surrounds them as premarital and extra marital sexual relations are
considered to be a serious profanity.

As defined by Oxford dictionary an illegitimate child means – a child born of parents not lawfully
married to each other.

Status of a spurious child in various legislations-

1.The Marriage Amendment Act, 1976 dispenses that all children born of void and voidable
marriages are legitimate; thereby removing the lacuna of section 16 of HMA Act ,1955. But the
problem does not end here even though the status of child is guaranteed to be legitimate he does not
have right to relatives property. The rights guaranteed are a)Right to be maintained till attainment
of majority .b)Right to inheritance of self acquired property . They do not have the right to joint
coparcenary property.

2. Legitimacy Act , 1926 of England provided that a child will be given status of legitimacy if the
parents subsequently marry.

3. Uniform Parentage Act, which says that “the parent and child relationship extends equally to every
child and to every parent, regardless of the marital status of the parents.”

4. Republic Act 9255, a child is considered illegitimate and will use the mother’s surname till he is
recognized by the father.

5. Muslim Law- An illegitimate child cannot be maintained under Muslim law because of
conviction of ‘nullis filuis’.

Creative Outline- Whether child born in live in relation to be considered illegitimate?

The answer to the above question was given in negative as Section 114 of Evidence Act provides
that if both man and woman are living and cohabiting under the same roof for a considerably long
time; will be presumed to be married and child born will not be illegitimate.

In a recent judgement of Madan Mohan Singh v. Rajnikant1 The crucial pre-conditions for a
child born from live-in relationship to be not treated as illegitimate are that the parents must have
lived under one roof and co-habited for a considerably long time for society to recognize them as
husband and wife. It must not be a “walk in and walk out” relationship.

1
(2010) 9 SCC 209