A PROJECT

ON

LEGITIMACY AND LEGITIMATION IN PIL

[submitted as partial fulfillment of the requirement for B.A.L.L.B- 5-year integrated course]

Session:2022-23

Submitted on: 17 Jan, 2023

Submitted by: Supervised by:

Ashwina Yadav Dr. Priyanka Joshi

Roll no-13

Semester – IX A

UNIVERSITY FIVE YEAR LAW COLLEGE

UNIVERSITY OF RAJASTHAN

JAIPUR

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 DECLARATION
 
I, Ashwina Yadav, hereby declare that this project titled “Legitimacy and
Legitimation in PIL” is based on the original research work carried out by me
under the guidance and supervision of Dr. Priyanka Joshi.

The interpretations put forth are based on my reading and understanding of

original texts. The books, articles, websites etc. which have been relied upon by
me have been duly acknowledged at the respective places in the text.

For the present project which I am submitting to the university, no degree or

diploma has been conferred on me before, either in this or any other university.

Date: 17 Jan, 2023

                                                                                    Ashwina Yadav

                                                                        Roll No: 13

                                                                        Semester: IX A

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 ACKNOWLEDGEMENT
 
In the accomplishment of this project successfully, many people have best
owned upon me their blessings and heart-pledged support, this time I am
utilizing to thank all people concerned with this project.

First of all, I would like to thank our Director Dr. Akhil Kumar for giving me an
opportunity. I would like to thank our supervisor Dr. Priyanka Joshi whose
valuable guidance and suggestions helped me complete this project within time.

I would like to thank the librarian and library staff who have been great support
throughout.

Last but not the least, I would like to thank my parents and friends for their
valuable suggestions which helped me in completing this project successfully.

  

Ashwina Yadav 
 

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 CERTIFICATE
 

Dr. Priyanka Joshi                                                  Date: 17 Jan, 2023

Faculty

University Five Year Law College

University of Rajasthan, Jaipur

This is to certify that Ms. Ashwina Yadav of IX Semester, Section A of

University Five Year Law College, University of Rajasthan, Jaipur has carried
out the project entitled ‘Legitimacy and Legitimation in PIL’ under my
supervision and guidance. It is an investigation report of a minor project. The
student has completed research work in my stipulated time and according to the
norms prescribed for the purpose.

Supervi
sor

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 TABLE OF CONTENTS

 Declaration 2
 Acknowledgement 3
 Certificate 4
 Abstract 6
 Introduction 7
 Research Methodology 8
 Chapter 1: Legitimacy 9-
11
 Chapter 2: Illegitimacy 12-14
 Chapter 3: Legitimation 15-16
 Conclusion 17
 Bibliography 18

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 ABSTRACT

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.

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.

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 INTRODUCTION

According to Leon R. Yankwich, children are not illegitimate but the parents are
illegitimate. This quote says it all.

Children become illegitimate because of the unlawful relationship of their parents. Yet both
the society and the laws of legitimacy/legitimation in most parts of the world have
discriminated against the illegitimate child and the rules for legitimation have been very
strict. The illegitimate child never had the same privileges under the law as a legitimate child.
Even under the personal laws, the right to inheritance of the illegitimate children and the
legitimate children are not similar. But society has some people who are not only rational but
also liberal in their outlook and do not attach any stigma to a child born out of wedlock. With
their liberal outlook, the law on the matter has also undergone amendments to accommodate
the illegitimate child’s rights.

Legitimation

Legitimate is a Latin word, meaning to make something lawful. It basically means adhering
or conforming to the laws/rules. Saying that something is legitimate makes it right, gives it an
authoritative or binding character. Legitimation is the noun form of legitimate.

Legitimacy

From the word, legitimate comes legitimacy which means the power to be supported with
logic and justification. There are far-reaching legal aspects regarding the status of a child in
relation to the child’s parents. A child is considered legitimate if the child is born of lawfully
wedded parents. “Lawfully wedded/wedlock” means a lawful marriage to be customary,
statutory, or islamic. 

Illegitimate

It means something which is not authorized by law or illicit. An illegitimate child is one that
is not born from lawful wedlock meaning that the parents are not validly married to one
another, be it customary, statutory, or islamic. This article will explore the various laws
which deal with legitimacy, legitimation and the role conflict of laws regarding the same.

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 RESEARCH METHODOLOGY

Research methodology for this project is doctrinal. Student has relied on secondary sources of
data. For obtaining necessary information, various books, journals as well as websites have
been explored by the researcher which has been mentioned in the reference section.

STATEMENT OF PROBLEM

This project aims to study about the legitimacy and legitimation in private international law.
To learn about the legitimation of illegitimate child in private International Law with respect
to India and England.

OBJECTIVES

The main objective of study is-

1. To know about the legitimacy and legitimation in private international law.

2. To know about the legitimation of illegitimate child in private International Law with
respect to India and England.

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 CHAPTER 1: LEGITIMACY

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 England

Fall of authoritarian regimes, sexual independence and revolution of the 1960s and 1970s, the
economic independence of women has resulted in the importance of legitimacy being
reduced significantly in western countries. Earlier the illegitimate child was called a ‘bastard’
and now the use of the term is akin to abuse and considered offensive. 

If the parents of a child born out of wedlock married each other subsequently, then the
Legitimacy Act 1926 of England and Wales legitimized the birth if they had not got married
to someone else in the meantime. A bastard was allowed to inherit on the intestacy of his
parents by the Family Law Reform Act 1969 and legitimacy was granted by the Canon and
Civil law to children of putative marriages. Generally, the children from polygamous
marriage were not considered legitimate but courts in England acknowledged their legitimate
status if the law where the parents were domiciled considered them legitimate. This was seen
in the case of Re Bischoff sheim but the judgment was severely criticized because of the
difficulty of its application where the domicile of the parents was different. 

The practice of refusing the right to inherit the father’s property to an illegitimate child has
now evidently undergone a change in England. The laws have so changed that if an applicant
has been domiciled in England or has resided throughout a period of one year from the date
of commencement of the proceedings in England, then he/she is declared legitimate. Under
modern law, a child born after artificial insemination is considered legitimate even though the
donor is not the husband unless it is proved that the insemination took place without the
husband’s consent. The rule, however, is not applicable when the marriage is between a

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woman and a transsexual person. According to the new laws, the unmarried father has a
parental duty and responsibility to look after the child if his name appears on the birth
certificate as the father of the child. This can be seen in Northern Ireland since April 2002, in
England and Wales since December 2003 and from May 2006 in Scotland.

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 recognized 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 that 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 otherwise the offspring is considered from an illicit
relationship. The term wife essentially signifies marriage but maybe without any ceremonies
having taken place and 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 acknowledgment 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

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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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 CHAPTER 2: ILLEGITIMACY

The conflict of Law relating to illegitimacy can be understood by the following example.
Let’s assume that an illegitimate child is born to an unmarried couple in a State X where they
are domiciled. So, the parents move to State Y where they follow some procedure for
legitimating the child according to the law of the jurisdiction of State Y. After that, the
parents move to the forum and unfortunately, the father of the child dies, leaving the child
with some property in the forum. The child claims a right of inheritance through his father by
proving that he has legitimacy according to the law of State Y and asks the court to take into
consideration his foreign created status of legitimacy and he is given full effect in the forum.
The ‘Conflict of Law’ obviously arises in this case as the legitimacy grating statute of the
place X, Place Y and the forum is different. So here, the act of the birth itself is the only
action necessary to make a child legitimate in relation to his natural parents.

Illegitimacy under English common law

If one looks at a list of famous people in the past one will find that many renowned and
prominent individuals throughout history were born to unmarried women and suffered
embarrassment and shame as a result.

Since Einstein and his fiancé had a daughter out of wedlock; on the insistence of his fiancé
they kept residences in separate cities basically to avoid the humiliation of having the child
before getting married. The laws of England were the harshest in comparison to all the laws
that governed children born to unmarried women. Whereas many countries granted
legitimacy to the child if the parents married, England did not. Before the English conquest of
Wales, a bastard was a child not acknowledged by its father. If the child was born in or out of
wedlock and if the father acknowledged the child then the child enjoyed the same legal rights,
including the right to share in the father’s estate. But after England’s conquest over Wales,
the English laws were applicable in Wales and things changed.  

Under the law in England, a bastard couldn’t be an heir to the real property, and couldn’t be
legitimized by the subsequent marriage of his father and mother but under civil law the
position was different. But in the situation where there are 2 bastard children, and parents
marry subsequently then the older illegitimate son becomes the owner of his father’s lands
and after his death, the property is passed on to his heirs. But the younger bastard/illegitimate

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child cannot stake a claim to the father’s land. The child was legitimized once the parents
married each other subsequently, and when they are not married to someone else under
the Legitimacy Act, 1926 of England. The area of legitimization extended with the coming of
the Legitimacy Act, 1959 which now permitted legitimization even if the parents had married
other people in the meantime. Even marriages which were presumed incorrectly by parents to
be valid were recognized. 

Both the 1926 and 1959 Acts, however, didn’t change the succession laws in Britain. A
bastard was now allowed to inherit the property of his parents. A child of a putative marriage
was also considered legitimate.

Illegitimacy under Hindu Law

Under Sections and 7,  the conditions of marriage are laid down and if these conditions are
contented then it is considered as a valid marriage under Hindu Marriage Act, 1955. The
child born out of such a marriage is also considered as legitimate. The marriage can be
declared as void or voidable under Sections and 12 of the Hindu Marriage Acts, 1955 if the
conditions given as per Section 5 of the act are not fulfilled.   

The definition of a void marriage is given under Section 11 of the Hindu Marriage Act, 1955,
which says that if the marriage does not fulfil the conditions laid down in
clause (i), (iv) and (v) of Section 5 of the Act, then, the marriage will be considered as null
and void. The child who is born out of this marriage will be considered as an illegitimate
child. The definition of voidable marriage and its grounds are given under Section 12 of the
Hindu Marriage Act, 1955, which says that if a marriage is annulled under any ground of
Section 12 of the Act, then, the child born out of this marriage will be considered as an
illegitimate child. Also, if at the time of the marriage if proper marriage ceremonies are not
performed then such a marriage will not be valid and the child born will also be considered as
illegitimate. Therefore, the children who fall into the category of illegitimate children under
Hindu Law are as follows:

 Children born from marriages which are void,

 Annulled/voidable marriages resulting in children,
 Illicit relationship from which children are born,
 Children born from a relationship with concubines, and

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  Children born of invalid marriages for want of proper ceremonies.

The rule of legitimacy under Hindu law depends on the marriage. How parents behave
determines the social status of the child. If it is a valid marriage, then the child is also
considered legitimate, but if the parents have acted in a foolish manner, having entered into
an invalid marriage and conceiving a child without even having a marriage relationship, such
a child is considered as illegitimate. The innocent child is labelled with such a tag without
having any fault of its own and has to suffer the consequences of its parent’s actions.

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 CHAPTER 3: LEGITIMATION

Legitimation is a process by which an illegitimate child is given legitimacy. The concept of

legitimation is, however, not recognised in India neither in Muslim law nor in Hindu law but
it is recognised by Portuguese law in Goa and the Legitimacy Act of 1926 in England etc.
Britain
Countries across the world have more lenient laws now when it comes to legitimacy and also
have processes in place where legitimacy can be granted to an illegitimate child, even if
parents are unmarried or the parents marry subsequent to the birth of the child. With so many
different laws of different jurisdictions coming into play in the matter, there is bound to be
the question of applicability of which law. This is where ‘Conflict of law’ comes into the
picture and helps decide which system of law and method of legitimation is more effective.
The law ultimately founded by Re Grove, in the case of Boye, is that 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 by subsequent marriage, it is not
recognised by the courts in England. In other words, Section 2 and Section 3 of
the Legitimacy Act, 1976 provides that this legitimation is effective from the date of the
marriage provided the other conditions are met. What this in effect means is that time of the
childbirth is not so important (Sine qua non) but the father’s domicile status at the time of the
marriage is the single deciding factor.
A long fight and campaign for the rights of the unmarried mother and her child resulted in the
Legitimacy Act, 1926 to come into force in Britain. The legitimacy was awarded to the child
on the subsequent marriage of the parents only if they had not married someone else in the
meantime meaning that the relationship was not adulterous. The Act was further amended
and called the Legitimacy Act, 1959 which additionally extended legitimacy to children from
parents who were not free to marry each other at the time of the birth of the child ending
discrimination against children born from an adulterous relationship. The present Act in force
regarding the matter is the Legitimacy Act, 1976.
India
Under Muslim law, acknowledgement by the father that the child is his through a valid
marriage is enough provided that legitimacy is possible.
In the case of Muhammad Allahdad Khan, it was the opposite. Here the court said that a child
is illegitimate if the marriage/relationship between its parents cannot be proved or it is

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unlawful. A mere acknowledgement by the father is not sufficient to grant the status of
legitimacy to the child.
In India legitimation is not a practice. We do not have any legitimacy Act and a concept of
legitimation. Legitimacy is a status that the child inherits only by virtue of being born during
the maintenance of a marriage between the mother and any man, or within 280 days after the
termination/annulment of the marriage if the mother is unmarried.  Except when it is proved
that the child was conceived when the parties to the marriage were not in any physical contact
during the time of conception of the child. Provisions for Presumption of paternity
under Section 112 of the Evidence Act, 1872 provides for the legitimacy of the child born
during the maintenance of a lawful marriage or within a certain period after the termination
of the marriage only if the mother of the child does not remarry. Section 4 of the Act gives
the presumption which can act as the conclusive proof mentioned under this Section.
Nowadays there are many ways of establishing paternity using scientific methods such as
DNA profiling. 

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 CONCLUSION

Every child born out of wedlock faces an indelible status of illegitimacy and getting branded
as bastards for life, the world over. Many countries following the doctrine expressed in
the Statute of Merton have rejected it calling it archaic. In the modern era, the courts have
recognised the potential of granting a legal status of full legitimacy, disregarding the social
environment in which they function. In continuance of this much needed social end, courts
have endeavoured to apply conflict of laws principles in such a way as to amend the effects
of the status of the illegitimacy of a child. Thus, the courts recognize the domicile of the
parents and give full effect to acts of legitimation despite the fact that the status of legitimacy
arose out of the subsequent marriage of the parents or acknowledgement of paternity of the
child.

With the increasing global movement, global citizenship and migration of the people the
issue relating to legitimacy and legitimation has become a very complex issue and the reason
for the dilemma faced by many courts. England has done away with the archaic laws
regarding legitimation and has adopted the lex domicile and now foreign orders on legitimacy
and legitimation are recognized in England.  Difficulties arise in India also because the
applicable personal law relating to these matters is determined by the individual’s religion.
Indians are found in most countries where they do not have personal laws based on religion
and they have a uniform civil code applicable to all. However, in India, the decisions are
majorly influenced by personal laws and legitimation, thus still doesn’t have recognition

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18
 BIBLIOGRAPHY

BOOK REFERENCES

 Paras Diwan, Private International Law (Central Law Agency, 22nd Ed., 2015).
 The Hindu Marriage Act, 1955, Bare Act, (Universal Law Publishing- Lexis Nexis,
2020).

WEB REFERNECES

 https://isochukwu.com/2017/12/31/family-law-2-7-legitimacy-and-legitimation/.
 https://pdfs.semanticscholar.org/8683/7142fc9f3fc12c7253797bb94e5880851983.pdf.
 https://www.politicalsciencenotes.com/legitimacy/legitimacy-legitimation-crises-and-its-
causes/797.
 https://www.lawctopus.com/academike/legitimacy-private-international-law/.
 https://www.bing.com/search?
q=private+international+law&go=Search&qs=n&form=QBRE&sp=-
1&pq=private+international+law&sc=8-
25&sk=&cvid=40A095CA735C4CC9BF9391706CF1BDE2.
 https://www.legislation.gov.uk/ukpga/1987/42/section/27.

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