In all societies, the status of children, whether they are born from legitimate

relationships or illegitimate relationships, has a great impact on their

lives. From historic to contemporary world, both have been classified
differently and their rights and liabilities also varied accordingly. The
legitimate one always had all the privileges while the illegitimate faced
a lot of discrimination and hardships. Not only the society, but the law
has given different status to both. To understand the concept of
legitimacy, it is important to understand the meaning of the term
first. The word legitimacy has been derived from a Latin word ‘legitimare’
which means to make lawful. As defined by the Oxford Dictionary,
illegitimacy means, “(of a child) born of parents not lawfully married to
each other”. Based on these definitions we can understand that
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 as offensive relationships or sin in
personal laws. Almost all religions do not recognise such relationships.
 Legitimization is a process of recognizing a
child to be legitimate. For example, the
subsequent marriage of the parents of the
child and recognition by the man. In India,
both Hindu and Muslim laws do not
recognize the concept of legitimization but
the concept of legitimacy while some
foreign laws recognise this concept like the
Portuguese law in Goa, The Legitimacy Act,
1926 of England, etc.
 According to Hindu laws, a marriage that fulfils the conditions
provided under Section 5 and section 7 is considered to be a
valid marriage and a child born out of such wedlock as a
legitimate child. But if a marriage does not fulfil the aforesaid
conditions then they become void or voidable as according to
Section 11 and Section 12 of the Hindu Marriage Act, 1986.
 Section 11 provides that under the following conditions a
marriage is void:
 If the marriage is bigamous
 If the persons married fall in the sapindas of each other.
 If the persons fall in the prohibited degree of marriage to each
other.
 Section 12 lays down the provision of voidable marriage, that
under the following circumstances the marriage would become
voidable, and it is then on the discretion of the parties to get the
decree of annulment from the Court:
 When one party was insane at the time
of marriage;
 When a party was impotent at the time of
marriage;
 When the wife was pregnant with
someone else’s child at the time of
marriage without the knowledge of the
husband;
 If the consent for marriage was obtained
by fraud or force.
 In case of void or voidable marriage, the child
conceived or begotten before the decree of
annulment has been passed, would be considered
legitimate but, if the decree of annulment has been
passed and then the child is conceived, he would be
considered illegitimate, as has been provided by
Section 16 of the Act.
 The child born out of a valid marriage has all the
rights in property, guardianship, maintenance and
inheritance, but an illegitimate child does not all such
rights. Further, we discuss the rights of an illegitimate
child.
 The Hindu law provides the rights of an
illegitimate child which can be
categorised into three main heads:
 Maintenance
 Inheritance
 Guardianship
 According to the Hindu Adoption and
Maintenance Act, 1956, a Hindu is bound to
maintain his or her illegitimate child. Now,
both the mother and father are bound to
maintain the child, while earlier only the
father was responsible for the maintenance
of the child. The right of maintenance
extends to a minority of child. The child, if
he ceases to be a Hindu, he shall not be
entitled to maintenance. In the case of an
illegitimate daughter, she is entitled to
maintenance until she is married.
 An illegitimate child is not entitled to inherit the property of
the father but can inherit the property of the mother.

 Guardianship:

 “A mother has a preferential right of guardianship, as per

the Hindu Minority and Guardianship Act, 1956. The mother
is considered the natural guardian of an illegitimate child
and after her, the father is the natural guardian, and in the
case of a married girl, the husband is the natural guardian.
Supreme Court has recently ruled that an unwed single
mother in India can be a sole guardian of the child.”
 Revanasiddappa vs. Mallikarjun
 The Supreme Court stated that “the constitutional values enshrined in the
Preamble of our Constitution which focuses on the concept of equality of status
and opportunity and also on individual dignity. The Court has to remember that
relationship between the parents may not be sanctioned by law but the birth of a
child in such a relationship has to be viewed independently of the relationship of
the parents.”

 Jinia Keotin vs. Kumar Sitaram Manjhi

 The Supreme Court opined that “Under the ordinary law, a child for
being treated as legitimate must be born in lawful wedlock. If the
marriage itself is void on account of contravention of the statutory
prescriptions, any child born of such marriage would have the effect,
per se, or on being so declared or annulled, as the case may be, of
bastardising the children born of the parties to such marriage .”
 Shanta Ram vs. Smt. Dargubai
 The court stated 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 a valid
marriage.”