LEGITIMATE AND

ILLEGITIMATE
• 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
• 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 to provide for legitimation of a child born
out of wedlock,' Lord Chief Justice Tindal was able to state in Birtwhistle v. Vardill"
that ". . . the rule of descent to English land is, that the heir must be born after actual
marriage of his father and mother
• 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
• The English common law started by openly declaring an illegitimate child as filius
nullius (an illegitimate child : bastard)
• England gradually modified its stand on illegitimate children till in 1969, by the
Family Law Reform Act 1969, in case of property an illegitimate child is put almost
in par with legitimate child
• 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.“
• 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
• In United States of America, the distinction between the legitimate and illegitimate children
is totally blurred.
• For example in United States, an Arizonian law passed in 1921 provides: Every child is
hereby declared to be the legitimate child of its natural parents. It is entitled to support and
education to the same extent as if it has been born in lawful wedlock
• In the end of the 20th century, in the United States, all the States had adopted uniform laws
that codify the responsibility of both parents to provide support and care to a child,
regardless of the parents marital status
• Illegitimate children and adopted children are also given the same rights to inherit their
parents property as anyone else.
• What International Human Rights Instruments has to say?
• The Universal Declaration of Human Rights says that all human beings have equal rights
and should be treated with equal dignity.
• It also says that same social protection should be given to all children whether born in or out
of wedlock.
• The European Convention for the Protection of Human Rights and Fundamental Freedoms
and the UN Convention on the Rights of the Child also insist that children should not be
discriminated.
 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.
• 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 Illinois 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;
• Legitimacy may be established by means of an expressly authorized judicial proceeding
• In Louisiana an 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.
 LEGITIMACY - ENGLAND
• A child is, or is presumed to be, legitimate if it is born anywhere in the world in “lawful
wedlock
• The system and the attitude of denying an illegitimate child the right to inherit his father's
property has now markedly changed in England.
• 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
• 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.
Knowles v. Knowles [1962] 1 All ER 659
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.- The Human
Fertilisation and Embryology Act, 1990
• This rule only applies where the parties to the marriage are Man and Women and, as decided
in J v. C [2007] Fam 1 (CA)., this rule does not apply where the women marries to a
transsexual person.
• 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
• 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- Bamgbose v. Daniel [1954] 3
All ER 263
• In Re Bischoffsheim [1948] Ch 79, ,a 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 lex domiciIii to be adopted should be that with which the
child was most closely connected
• 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 1959 , subject to the provision that the
father should be an English citizen.
• 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
• Re Grove (1888) 40 Ch D 216, after some hesitation in Boyes v. Bedale(1863) 1 Hem & M
798, 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.
• In Re Bischoffsheim , 1948
• 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
factor
 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, 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.
• If the child has born of a marriage which is null and void under section 11 or 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 intestacy
• In Kamulammal (deceased) represented by Kattari Nagaya Kamarajendra Ramasami
Pandiya Naicker v. T.B.K. Visvanathaswami Naicker (deceased) & Ors the Privy Council
held when a Sudra had died leaving behind an illegitimate son, a daughter, his wife and
certain collateral agnates, both the illegitimate son and his wife would be entitled to an equal
share in his property. The illegitimate son would be entitled to one-half of what he would be
entitled had he been a legitimate issue. An illegitimate child of a Sudra born from a slave or
a permanently kept concubine is entitled to share in his father’s property, along with the
legitimate children.
• In Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh & Anr, the
facts were that the Raja was a Sudra and died leaving behind a legitimate son, an illegitimate
son and a legitimate daughter and three widows. The legitimate son had died and the issue
was whether the illegitimate son could succeed to the property of the Raja. The Privy
Council held that the illegitimate son was entitled to succeed to the Raja by virtue of
survivorship.
• In Shanta Ram v. Smt. Dargubai, the Bombay High Court observed 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 valid marriage
• In no school of Muslim law, an illegitimate child has any right of inheritance in the
ownership of his putative father. Under the Hanafi law, the mother and her illegitimate
children have mutual rights to inherit property.
• The illegitimate child inherits not only the property of his/her mother but also the property
of all other relations with whom he/she is related through their mother.
• In Muslim law, the illegitimate child has no right to inherit property from the father
• when a Hanafi female dies to leave behind her husband and an illegitimate son of her sister,
the husband will take one-half of the total property and the remaining will go to the sister’s
son.
• Since the illegitimate child cannot inherit from the father, he/she cannot inherit from any
other relations through the putative father.
• In BibiNanyer-Omissa v. BibiZainirun11 WR 476., 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
Khan v. Muhammad Ismail Khan (1888) ILR 10 All 289, 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.
 AUSTRALIA
• the distinction between legitimate and illegitimate has been virtually eliminated in Australia
• Children born by artificial insemination or the vitro fertilization are regarded as legitimate unless it
has established that husband has not consented
• A child regarded as legitimate by the law of his domicile will be regarded as legitimate in Australia
• If father and mother are domiciled in different countries , one must consider the domicile of only the
father as legitimacy is primarily a relationship with the father
• Australia permits , by a statute, legitimation by a subsequent marriage of the parents; it applies if the
marriage took place in Australia , or in case after April 1985, if either party was domiciled in
Australia at the date of the marriage
• Foreign legitimations would be recognised in Australia if the legitimation is recognised by
the father’s domicile at that time
• Legitimation by subsequent marriage outside Austria is recognised by the law of the
domicile of either parent
 CANADA
• Children are legitimate if they are born out of lawful wedlock, but they may also be
legitimate if they are born out of a putative, polygamous or voidable marriage
• AN ILLEGITIMATE CHILD MAY be legitimated by a subsequent marriage of the parents,
the same will happen if the act of legitimation takes place outside the country if it is
regarded as valid by the law of the domicile of the father, or by a formal acknowledgement
by the father in a manner sufficient to satisfy the applicable law
• Illegitimate child has the same rights as a legitimate child
 US
• 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
• 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 the forum might not recognize a foreign legitimation which is contrary
to its own concepts of public policy
• 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.
• 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
 SOLVE
• the illegitimate children of a bigamous marriage claimed a right to inherit from an Illinois
decedent. To support an allegation of legitimation, the children proved that their father had
obtained a divorce from his first wife after they were born to the second, and according to
the law of Nevada where all parties were then domiciled, a common law marriage arose
from the ashes of the Nevada divorce.

• Daisy was born illegitimate in Ohio, and her father and mother were married in that state
shortly after bastardy proceedings were instituted. Having done his duty, the father left Ohio
immediately after the wedding, eventually dying domiciled in California and leaving realty
in Illinois. While in Indiana and California, the father acknowledged paternity, so that the
provisions of the Illinois statute requiring marriage plus acknowledgment were both met,
although not in the same state.
• After the birth of an illegitimate in Nova Scotia, the parents married and adopted the child
while domiciled in that country. Unfortunately, neither act was of any legal significance in
Nova Scotia. The father later moved to Maine, and upon his death the child claimed a right
of inheritance.

• 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,