…………………………………………………………………………

Project on Legitimization-Meaning & Concept, Effect & Legitimization

and Succession under Private International Law

…………………………………………………………………………………

Submitted by: - Submitted to:-

Archit Virendra Sharma Dr. Ajay Kumar Barnwal
B.Sc.LL.B.(Hons.) Assisstant professor
9th semester School of law and governance
CUB1513115022 CUSB
 TABLE OF CONTENTS

Serial Number Topic Page Number

01 Introduction 04

02 Background 05

03 Conflict in provision 06
Concept and meaning of legitimacy
04  Position in England 07-09
 Position in India
Legitimization
 Position in England
 Position in India
05 10-15
 International conventions
 Judicial developments in India
 Process of Legitimization
06 Effects of Legitimization 16-17

07 Conclusion 18

15 Bibiliography 19
ACKNOWLEDGEMENT

It is a great pleasure for me to present the final draft of the project topic. I
am very much obliged to my revered teacher Dr. Ajay Kumar Barnwal
(Assistant Professor) of Central University of South Bihar, Gaya who has
given me a task to complete the project work. I am very much helped by
him regarding the formation of this final project.
I express my heartfelt indebtedness to Sir who showed me the path
and helped me to understand the project topic. It was not possible for me
to make the final project if I was not being helped by him. He acted as my
mentor and also a guide to help me to understand the whole of the
provision and provided me with the proper synopsis of the project work.
I would like to express my gratitude towards my parents for their kind co-
operation and encouragement which help me in completion of this final
draft.
I would like to express my special gratitude and thanks to the
computer lab assistant who provided me all the facilities regarding the
conditioned computer with a good wi-fi net.
My thanks and appreciations also go to my colleague in developing
the project and people who have willingly helped me out with their
abilities.

Thanks
Introduction

The branch of Indian law, in contradistinction to the ordinary local or domestic law of India,
which is concerned with cases having a “foreign element‟, is known as the conflict of laws or
private international law. And foreign element means a contact with some system of law
other than the Indian law.1 Conflict of Laws is not a law governing relations between
independent States rather is simply a branch of civil law of the States evolved to do justice
between litigating parties in respect of transactions or personal status involving a foreign
element.2 Conflicting laws of different state legislatures in India, the overlapping entries in
different lists3, the conflict of different personal laws are not the subject matter, we are here
concerned with.

Legitimacy in layman’s language means the status acquired by a person who is born to
parents who are married to one another at the time of the birth. Legitimation means that a
person who has not been born to married parents acquires the status of legitimacy as a result
of some act. Adoption involves the extinction of the parental links between the child and the
biological parents and the creation of similar links between the child and the adoptive
parents.4

Although there are many areas in which rules of law reflect current feelings of moral and
social policy, few justiciable controversies call for the determination of such factors as
directly as does a case involving the legal status and rights of an illegitimate child. This is
particularly true where one state is called upon to determine the status of an illegitimate who
was born or has been domiciled in another state prior to migration to the forum. In such
situations the policy of the forum might conflict sharply with that of the state in which the
parents attempted to "legitimate" the child. And in making a choice as to which law should
properly be applied, the court's decision will determine not only the legal rights of the child,
but to a significant degree will also affect the child's social status and his own personal
feelings in regard to the stigma placed upon him by his parents.

1
What is meant by the Conflict of Laws, Conflict of Laws, Halsbury Law Journal, Vol:10, p. 75.001.
2
R Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1 at 10, [1963] 3 SCR 22.
3
Seventh Schedule of the Constitution of India.
4
Fawcett, James etal., Cheshire and North‟s Private International Law, 14th edition, Oxford University Press,
New Delhi, 2008, p. 1141-2.
Background:

The early common law treatment of the illegitimate child showed a marked disregard for
these social implications. Based on the refusal of the Earls and Barons in 1235 to provide for
legitimation of a child born out of wedlock,' Lord Chief Justice Tindal was able to state in
Birtwhistlev. Vardill" that ". . . the rule of descent to English land is, that the heir must be
born after actual marriage of his father and mother . . . and . . . this is a rule of a positive
inflexible nature, applying to and inherent in the land itself which is the subject of descent.
"The fact that the claimant had acquired a status of legitimacy according to the laws of
Scotland was held to be wholly immaterial. Under the law of England, one seeking rights of
inheritance must have been born during lawful wedlock, and his status in another country was
of no consequence. This unyielding refusal on the part of the early common law courts to
give any legal recognition to an illegitimate was succinctly described by Blackstone when he
wrote that such a child's ". . . rights are very few, being only such as he can acquire, for he
can inherit nothing, being looked upon as the son of nobody, and sometimes called filius
nullius, sometimes filius populi.” In fact, children born out of wedlock continued to be
regarded in England as bastards for life until the Legitimacy Act of 1926 finally made
provision for legitimation by the subsequent intermarriage of the child's parents.'

While England was slow to recognize a potential in an illegitimate child to acquire a status
of full legitimacy, the American law developed with greater rapidity, and only a few
instances of adherence to the strict common law principle may be cited. For example, in
1895the Florida Supreme Court declared that ". . . legitimation in a foreign country does not
make lawful heirs, in other countries, where the common law or the statute of Merton is now
in force, of those who were born out of lawful marriage."

And in Smith v. Derr'sAdm'rs ,the Pennsylvania Supreme Court refused to depart from
common law precedents, stating that "so far as our law is concerned, legitimation by the
subsequent marriage of the parents abroad, by act of a foreign legislature or by judicial decree
abroad, are all fruitless." Fortunately, such cancerous doctrines did not become malignant,
and all fifty states have recognized the inequity of an indelible status of illegitimacy by
providing for some form of legitimation after birth.
Conflict in Provision:

The usual conflict of laws case involving an illegitimate child arises as follows: An
illegitimate child is born in State A, and while domiciled in that state, or in State B, the
parents do an act which would have the effect of legitimating the child according to the law
of that jurisdiction. The parents then move to the forum where the father eventually dies, or
perhaps they are domiciled in another state at the time of his death, and he leaves real or
personal property in the forum. Claiming a right of inheritance from or through his father, the
child proves that he has been legitimated according to the law of another state, and alleges
that the foreign created status of legitimacy should be recognized and given full effect in the
forum. The "conflict" in such a case is generally due to the fact that the legitimation statute of
the forum is different than that of State A or State B. This section will attempt to point out the
lack of uniformity in statutory provisions which gives rise to such conflict of laws cases. The
only act necessary to make a child legitimate in relation to his natural parents and their
collaterals is the act of birth itself.

The second most common statutory provision is one enabling the child to inherit from or
through his father, or granting full legitimacy, if the father has acknowledged paternity. Every
illegitimate child is an heir of the person who, in writing, signed in the presence of a
competent witness, acknowledges himself to be the father, and inherits his or her estate, in
whole or in part, as the case may be, in the same manner as if he had been born in lawful
wedlock; but he does not represent his father by inheriting any part of the estate of his father's
kindred, either lineal or collateral, unless, before his death, his parents shall have
intermarried, and his father, after such marriage, acknowledges him as his child, or adopts
him into his family; in which case such child is deemed legitimate for all purposes of
succession.

In addition to the two methods of legitimation discussed above, several miscellaneous

provisions need to be mentioned in order to complete the picture. Legitimacy may be
established by means of an expressly authorized judicial proceeding. In Louisiana a notarial
act before two witnesses is sufficient, and in Wisconsin an admission of paternity in open
court will have the same effect. A father may "adopt" his illegitimate child and thereby
legitimate him as of the time of birth. The latter provision in regard to "adoption" of an
illegitimate child is of particular importance.
Concept and Meaning of Legitimacy:

Legitimacy refers to the status of a child who is born to parents who are legally married to
each other. The word legitimacy has been derived from the Latin term “legitimare” which
means to make lawful. The Indian law is averse to declare a child as illegitimate. Under the
Indian Evidence Act 1872, there is presumption in favour of legitimacy of a child born during
the continuance of a valid marriage between his mother and any man, or within 280 days
after its dissolution, the mother remaining unmarried.

The presumption can only be rebutted if it is shown by competent evidence that the parties to
the marriage had no access to each other at any time when the child could have been
begotten.

In England, the presumption of legitimacy may be rebutted by proof of impotence or sterility

of the husband, but there is nothing specific on this point in the Indian law. An illegitimate
child or bastard is one which is born to parents who are not lawfully wedded to each other or
not within a competent time after the cessation of the relationship of a man and his wife, or
born within wedlock when procreation by the husband was not possible because of congenital
or acquired mal formations or illness. A child is, or is presumed to be, legitimate if it is born
anywhere in the world in “lawful wedlock”.5 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.6 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.7 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.8 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.9 This rule only applies where the parties to the marriage are Man and
Women and, as decided in J v. C10, this rule does not apply where the women marries to a
transsexual person.

5
Setalvad, Atul M., Conflict of Laws, 2nd edn., LexisNexis ButterworthsWadhwa, Nagpur, 2009, p. 397.
6
Dicey, Morris & Collins, Conflict of Laws, 14th edn.,paras 20-002 and 20-010 c.f. Setalvad, Atul M., Conflict of
Laws, 2nd edn., LexisNexis ButterworthsWadhwa, Nagpur, 2009.
7
Id. R 103, p 1036-37.
8
Knowles v. Knowles [1962] 1 All ER 659
9
The Human Fertilisation and Embryology Act, 1990
10
J v. C [2007] Fam 1 (CA).
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.11

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.12

In Re Bischoffsheim,13a 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
lexdomiciliito be adopted should be that with which the child was most closely connected14.

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 195915 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.16

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.

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 intestacy17 but can succeed
mothers‟ estate. If the child has born of a marriage which is null and void under section 11 or

11
Supra note 6, r 104(2), p. 1040.
12
Bamgbose v. Daniel [1954] 3 All ER 263
13
Bischoffsheim, Re [1948] Ch 79, [1947] 2 All ER 830.
14
Supra note 6, para 20-015
15
Replaced by Legitimacy Act 1976.
16
Cheshire, North & Fawcett, Private International Law, 14th edn. P. 1149 c.f. Setalvad, Atul M., Conflict of
Laws, 2nd edn., LexisNexis ButterworthsWadhwa, Nagpur, 2009.
17
DaddoAtmaramPatil v. RaghunathAtmaramPatilAIR 1969 Bom 176; Ramkali v. MahilaShyamwatiAIR 2000
MP 288.
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 intestacy18.

In Mahomedan law, applicable to Sunnis governed by the HanafiSchool, illegitimate children

cannot inherit from the father, but can from the mother. But in case of Shias, the illegitimate
children can never inherit.19

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.

18
GurnamKaur v. Puran Singh (1996) 2 SCC 567.
19
Mulla‟s principles of Mahomedan Law, 19th edn., p. 81 and 99.
 Legitimation
Legitimization is a process to recognize the child of being legitimate. Subsequent Marriage
between the parties, Acknowledgment by the man20 etc. are the examples of legitimation.

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.21

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
Grove22, after some hesitation in Boyes23, 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.24

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
factor25.

20
In several states in Europe and in North and South America, a father is allowed to legitimate his child by
formally recognizing him as his own
21
Supra note 6, r 108, p. 1065
22
Grove Re, (1888) 40 Ch D 216
23
Boyes v. Bedale(1863) 1 Hem & M 798
24
Section 2 of the Legitimacy Act, 1976.
25
Heron v. National Trustees Executors and Agency Co of Australasia Ltd [1976] VR 733.
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.26

In BibiNanyer-Omissa27, 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 Khan28, 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.

26
Sadik Husain Khan v. Hashim Ali Khan (1916) ILR 38 All 627, PC.
27
BibiNanyer-Omissa v. BibiZainirun11 WR 476.
28
Muhammad Allahdad Khan v. Muhammad Ismail Khan (1888) ILR 10 All 289
International Conventions and Declarations regarding legitimacy:

Hague Conference on Private International Law

Recognizing some of the difficulties and challenges associated with international adoption,
the Hague Conference on Private International Law developed the Convention on Protection
of Children and Co-operation in Respect of Inter country Adoption which came into force on
1 May 1995. The main objectives of the Convention are to establish safeguards to ensure that
inter country adoptions take place in the best interests of the child and with respect for his or
her fundamental rights as recognized in international law. Secondly, to establish a system of
co-operation amongst Contracting States to ensure that those safeguards are respected and
thereby prevent the abduction, the sale of, or traffic in children. Thirdly, to secure the
recognition in Contracting States of adoptions made in accordance with the Convention.

Judicial Developments

Legitimation by judicial proceeding and by special legislative act have rarely been presented
in a conflict of laws context. According to the Restatement of Conflicts, and Professor Beale,
an act performed after the birth of an illegitimate child will not relate back to the time of birth
and make the child legitimate ab initio unless the law of ". . . the state of domicile of that
parent at the time of the child's birth and the law of the parent's domicile at the time of the
legitimating act so provide." No recent case can be found supporting such a requirement, and
this writer joins Professor Rabel in his suggestion that it is an artificial doctrine based on a
"preconceived idea" unsupported by any American decision of actual importance.

The general problems involved before applying them to statutory provisions need to be seen
first.

(1) The status of a child may fall within any one of five classifications; legitimate,
illegitimate, illegitimate but capable of inheriting from one or both parents, legitimated, or
recognized as a natural child under civil law concepts. Of these five, it is most important to
keep in mind the distinction between an illegitimate child who has been fully legitimated and
one who has acquired only a right to inherit from or through his parents.

(2) The law of the domicile of a decedent governs the question of those entitled to
distribution of his personal property, and the law of the situs controls in regard to real
property.

(3) An illegitimate child fully legitimated by the law of the domicile of the parent whose
relationship to the child is in question, is generally regarded as legitimate everywhere. To this
general rule must be tacked the caveat that the forum might not recognize a foreign
legitimation which is contrary to its own concepts of public policy."

(4) If the child has been fully legitimated according to the law of the domicile of his parent, it
is immaterial that the law of the child's own domicile would not have this effect."
(5) An act done which is sufficient to legitimate under the laws of the state where performed,
will not legitimate where such act is not sufficient under the laws of the domicile of any of
the parties involved. It is also doubtful whether an attempted act of legitimation will be given
effect in a foreign jurisdiction where such act is sufficient only in the state of the child's
domicile.

(6) Where the act of a parent in a foreign jurisdiction did not fully legitimate the child in that
state or country, but only resulted in a right to inherit from that parent, such act will generally
be disregarded in other jurisdictions.

(7) If the forum characterizes its own legitimation statute as one of succession, an illegitimate
may be permitted to inherit local property, both real and personal, without consideration of
the law of the parent's domicile at the time of the alleged legitimating act.
 PROCESS OF LEGITIMISATION:

A) Legislation by Subsequens Matrimonin

Of the several methods whereby an illegitimate child may become legitimate, that of
legitimation per subsequens matrimonin is most common existing in all but one state. Due
possibly to the fact that such statute is usually present both at the forum and at the domicile of
the parents at the time of their marriage, there has been little deviation from the general
principles listed above. Thus, if the parents subsequently marry, and according to the law of
their domicile at that time, the ceremony has the effect of legitimating the child, he will
generally be deemed legitimate wherever he might go. Should either of his parents die
intestate leaving realty or personalty in another jurisdiction, he will be entitled to inherit as a
legitimate heir. And even though his father may die domiciled in a state other than that where
legitimation by subsequent marriage occurred, he will nevertheless be entitled to recover
under his father's life insurance policy. In addition, the rule recognizing such a foreign
legitimation applies in favor of the parents as well as the child.

Thus, it is unnecessary for the parents to institute judicial proceedings to establish legitimacy,
because a legitimate child cannot be legitimated, and the forum will recognize the status
acquired in the state of the parent's former domicile.

Cases:

Another situation in which the forum might extend such recognition to the parents is
illustrated in the rather unusual case of Skeadas v. Sklaroff. After giving birth to an
illegitimate child in Rhode Island, the mother consented to a proposed adoption by defendant
and gave them custody of the child. More than four years later the defendants filed a petition
in Rhode Island to adopt the child, whereupon the natural parents immediately went through
a marriage ceremony in Massachusetts (the state of their domicile). Before the words of the
preacher had faded away, they filed suit in Rhode Island to obtain custody of their child,
alleging that he had been legitimated due to the Massachusetts marriage, and any adoption in
Rhode Island would be of no effect without the consent of the legitimate father. Applying the
same conflict of laws rule which enables a legitimated child to inherit in the forum, the court
held that the natural parents were entitled to custody because the child had been legitimated.

B) Legitimation by Acts Other Than Marriage

Subsequent acknowledgment of paternity- Where a father has attempted to legitimate his

child by acknowledging paternity, a sister state will generally give this effect to his act if it
was sufficient to legitimate according to the law of his domicile at the time he acted and this
is so even though the forum may have no such statute." The real problem involved where
legitimation is claimed under such a provision is one of characterization-is the statute one of
legitimation, giving the child a status of full legitimacy, or one of succession, giving him only
a right to inherit from his father? The prevailing view seems to be in favor of succession
rather than legitimation. Moen v. Moen' is illustrative of this point. While domicileed in
Norway, father Moen executed a written document acknowledging paternity of his
illegitimate child. The law of Norway attached no legal significance to this act, but the South
Dakota court characterized its own acknowledgment statute as one of succession and
permitted the child to inherit local realty. In so holding, the court made this rather interesting
statement:

Legitimation by adoption- Several of the leading conflict of laws cases have been based on a
claim of legitimation under such provisions. One such case is that of In Re Presley's Estate.”
While domiciled in Tennessee, father Presley acknowledged paternity, accepted his
illegitimate child into his family with the consent of his wife, and treated the child in all
respects as though legitimate. According to the law of Tennessee, these acts were of no legal
consequence, but under the law of Oklahoma where Presley Sr. died a domiciliary, they were
sufficient to legitimate. In holding that Presley Jr. could not inherit from his father in
Oklahoma, the court applied the general rule looking to the law of the father's domicile at the
time of his alleged legitimating acts, and found that a status of legitimacy had not been
created in Tennessee. The court then indicated that where a child has not been legitimated
according to the law of the father's domicile, the act of moving to another state will not create
such a status, regardless of the fact that the child would be deemed legitimate had the acts
occurred in the latter state.

As authority for its position that the law of the father's domicile is determinative in regard to
legitimation.

C) Recognized Natural Child

The civil law concept providing for the status of a recognized natural child is unknown to the
common law, falling within neither the category of illegitimate or legitimated. Although there
is a lack of uniformity in civil law jurisdictions as to what is necessary in order to acquire
such a status, for our purposes it may be explained as follows: Even though the parents of an
illegitimate child have never married, the child may acquire certain rights of inheritance if his
parents were capable of marriage at the time he was born, and if they subsequently recognize
him as their child according to the procedure required by the civil code. Having acquired such
a status, if it later becomes necessary for him to seek recognition of his inheritance rights in a
common law jurisdiction, he is faced with the rather difficult task of convincing the court that
he should not be regarded as illegitimate, but should be treated as though he had been fully
legitimated under common law concepts. Unfortunately, his chances of success are very slim.
 EFFECT OF LEGITIMACY:

There are mainly two effects of legitimation:

1. Social recognition
2. Succession

Social recognition:

Child receives social status in society due to legitimacy. He is known by name of his father.
He becomes legal heir in property of his father. He gets recognised as legitimate in the eye of
law.

Succession:

Only a legitimate child can inherit the property of its father. In English law, a monster, which
does not have the shape of mankind, is incapable of inheriting, but there is nothing specific
on this point in the Indian law.
In Loli and Radhika Singh case, the Supreme Court in 2008 held that if a man and woman
live together and cohabit for a long period as husband and wife, there is a presumption of a
valid marriage between them and that child born out of such relationship would be legitimate
and have inheritance and succession rights.
Under Section 3(57) of the General Clauses Act, 1897, the definition of son includes an
adopted son and under Section 12 of the Hindu Adoption and Maintenance Act, 1956, an
adopted son or daughter is entitled to succeed to the estate of his adoptive parents.

Adoption can only be recognized if it is permitted by statute or accepted by custom. In India,

the only religion that maintains a statutorily recognized right to adopt is the Hindu religion
under the Hindu Minority and Guardianship Act, 1956. Barring Muslims, adoption in India in
respect of all religious communities is governed by the Guardians and Wards Act, 1890. The
Act contains no reference to domicile, nationality, residence etc. as condition precedent to
their applicability. Personal law of Muslims, Christians, Parsis and Jews does not recognize
complete adoption. As non-Hindus do not have an enabling law to adopt a child legally, those
desirous of adopting a child can only take the child in 'guardianship' under the provisions of
the Guardians and Wards Act, 1890. This, however, does not provide to the child the same
status as a child born biologically to the family. Unlike a child adopted under the Hindu
Adoption and Maintenance Act, 1956 the child cannot become their own, take their name or
inherit their properly by right. This Act confers only a guardian-ward relationship. This legal
guardian-ward relationship exists until the child completes 21 years of age. Foreigners, who
seek to adopt an Indian child, do so under this Act to assume legal Guardianship of the child,
after giving an assurance to the court that they would legally adopt the child as per the laws
of their country, within two years after arrival of the child in their country.
Other effects of legitimisation are as under:

Affiliation/adoption Cases i.e. maintenance:

These are the suites instituted for fixing the paternity of an illegitimate child upon a certain
individual as he is bound, under Section 125 of the Code of Criminal Procedure, 1973 to
support his illegitimate child which is unable to maintain itself, irrespective of age. A first
class Magistrate may make a monthly allowance of a sum on the whole, for the maintenance
of such a child. In determining the amount of maintenance under the Hindu Maintenance Act,
1956, the court has to consider the position and status of the parties and reasonable wants of
the claimant, the value of the claimant’s property and any income derived from it and the
number of persons entitled for maintenance.
Supposititious or fictitious child:
Here a woman may first feign pregnancy, then delivery and later produces a child claiming it
to be her own to extort money by blackmail or divert succession of property. Such cases
occur when succession to large states is involved or when money is to be extorted by
blackmail.
Nullity of marriage:
If a mother delivers a child, the intrauterine age of which is greater than the period
intervening between the marriage and delivery, the marriage in such a case may be nullified
on the ground of immorality.
Divorce:
If the intrauterine age of the child is proved to be greater than the period of access between
the parents, dissolution of marriage is allowed by the court on the ground of adultery.
Posthumous child:
It is the child who was conceived when the father was alive but was born after the death of
his father.

Medico-legal aspects of legitimacy

The following are the medico-legal points that have to be investigated in these cases:-
1. The average duration of pregnancy;
2. The maximum period of pregnancy;
3. The minimum period of pregnancy for viability of foetus;
4. Paternity;
5. Unusual forms of pregnancy
Conclusion

No better example can be given of the adaptability of the common law to fluctuating mores
and concepts of social policy, than the progressively more tolerant treatment afforded by
common law courts and legislatures to those children unfortunate enough to be born out of
wedlock.

Recognizing the inequity of an indelible status of illegitimacy, and realizing that punishment
of the illegitimate in no way deters illicit cohabitation, American legislatures have
unanimously rejected the archaic doctrine embodied in the Statute of Merton. Despite such
early common law precedents branding illegitimates as bastards for life, modern courts and
legislatures have refused to disregard the social environment in which they function, and have
recognized in each illegitimate child a potential of acquiring a legal status of full legitimacy.
In furtherance of this desirable social end, courts have also endeavorea1 to apply conflict of
laws principles in such a way as to ameliorate the effects of a status of illegitimacy which
attached to a child born out of wedlock in another state or country. Thus, the courts will
recognize and give full effect to acts of legitimation effective according to the domicile of the
parent, regardless of whether the subsequently created status of legitimacy arose due tothe
marriage of the parents, acknowledgment of paternity, or "adoption" of the child. In fact,
there are only three frequently recurring instances where a foreign born illegitimate might not
receive favourable treatment in the forum; where some "policy" of the forum is contrary to
the law of the jurisdiction in which the child acquired a status of legitimacy, where the
foreign law resulted in the creation of only a right to inherit and not a status of full
legitimacy, and where the child has become are cognized natural child in a civil law
jurisdiction.

Thus, if we look to the parts as well as the whole, it is reasonable to conclude that a statute of
legitimation is not one of status only, but also one dealing with rights of succession. Such
reasoning has been applied in regard to legitimation by subsequent marriage," by
acknowledgment of paternity,' and by "adoption,"' thus making it unnecessary for the child to
establish complete legitimation according to the law of some other jurisdiction.
Bibliography:

1) Conflict of Laws by Morris

2) Private International Law by Chesire, North and Fawcett, 14th Edition, Oxford
University Press
3) Private International Law by ParasDiwan
4) Conflict of Laws, Halsbury Law Journal, Vol:10,
5) Mulla‟s principles of Mahomedan Law, 19th Edition.