RIGHTS AND STATUS OF ILLEGITIMATE CHILDREN

Author(s): Kusum
Source: Journal of the Indian Law Institute, Vol. 40, No. 1/4, HUMAN RIGHTS SPECIAL
ISSUE (January-December 1998), pp. 295-310
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43953323
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 RIGHTS AND STATUS OF ILLEGITIMATE CHILDREN

Kusum *

Introduction

There is a growing awareness and concern for the welfare of children which is indicated
at the national and international levels by the various national policies and constitutional
provisions and international covenants and human rights instruments.

The Geneva Declaration containing five principles adopted on September 26, 1924
stated that necessary means must be provided for the physical and spiritual development
of the child. It specifically provided for education and protection against exploitation.
Article 25(2) of the Universal Declaration of Human Rights 1948 provided, inter alia,
that "motherhood and children are entitled to special care and assistance. All children
born whether in or out of wedlock shall enjoy the same social protection." In 1959 came
the Declaration of the Rights of the Child by the General Assembly of the United Nations
containing the principles which developed the 1924 Geneva Declaration. The
International Covenant on Civil and Political Rights 1966 also makes special provisions
for the protection of the rights of the child without any discrimination. However, the
most historic development in the context of human rights of the child is the Convention
of the Rights of the Child 1989 which was unanimously adopted by the General Assembly
and which came into force in 1990. Unlike the 1959 Declaration, the 1989 Convention
imposes an obligation on the ratifying states to comply with its provisions and also
provides for a mechanism for monitoring compliance. Besides, signatory states are
under an obligation to report to a committee on the Rights of the Child.

The convention adopts a holistic approach and deals not only with civil and political
rights but also economic, social, cultural and humanitarian rights which are
interdependent. The preamble to the Convention recalls the basic principles of the United
Nations and specific provisions of certain human rights treaties and proclamations; it
reaffirms the fact that children, because of their vulnerability, need special care and
protection and places special emphasis on the primary caring and protective responsibility
of the family, the need for legal and other protection of the child before and after birth,
the importance of respect for the cultural values of the child's community and the vital
role of international cooperation in achieving the realisation of children's rights.

There are 54 articles divided into three parts: Fart I1 deals basically with the various
rights, "... irrespective of the child's ... birth or other status ... [and] ... protection against
all forms of discrimination on the basis of the status" .2 Part II3 of the Convention provides
for dissemination of information and appointment of a committee for examining the

* Research Professor, Indian Law Institute. New Delhi.

1 Convention of theRights of the Child 1989 arts. 1-41.
2. Id art. 2.
3. Id arts. 42-45.

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296 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol.40

progress made by the state parties in fulfilling the obliga

ratification, accession and amendment.

The paediatric conscience of the Indian Constitution i

provisions for the welfare of children. Article 23 prohibit
forced labour and article 24 prohibits employment of chi
work in any factory, or mine or other hazardous employm
state to secure conditions in favour of children so that thei
they are not compelled by economic necessity to take up j
strength, while under article 39(0 the state is directed to en
opportunities and facilities to develop in a healthy manner
and dignity and that childhood and youth are protected ag
moral and material abandonment". Article 45 provides for f
for all children up to the age of 14. Apart from these const
various laws, national policies and programmes for the wel
Policy for Children 1974 lays down that, "it shall be the
adequate service to children, both before and after birth and
to ensure their full physical, mental and social developme

Pursuant to the above international and national direct

and schemes have been adopted and laws enacted to ensu
children.

Children Born Outside Wedlock

Though every child needs special care and protection because of his physical a
mental vulnerability, some children are more vulnerable than others because of the
physical, socio-economic cultural or other conditions. Children born to parents who
relationship is not socially or legally recognised is one such category of children wh
suffer social reprobation and legal discrimination. These children are termed
illegitimate or bastard, a term of abuse or contempt in common parlance. As observ
by one author:5

The bastard, like the prostitute, thief, and beggar, belongs to that motley crowd
of disreputable social types which society has generally resented, always
endured. He is a living symbol of social irregularity and undesirable evidence
of contramoral forces; in short, a problem - a problem as old and unsolved as
human existence itself.

A leading text book on torts6 refers to the use of certain words and phrases to be
amounting to defamation. These inter alia are "coward, drunkard, hypocrite, liar,
scoundrel, crook, a scandal-monger, an anarchist, skunk, bastard , eunuch, or a 'rotten-
egg' ... because all these labels obviously tend to affect the esteem in which one is held
by one's neighbours".

4. Id arts. 46-54.

5. Davis, 'illegitimacy and .the social structure" 45 Am J. Sociology 215 (1939) quoted by
Harry D. Krause in "Equal Protection for the Illegitimate" 65 Mich Law All ( 1966-67).
6. William L. Prosser, Law of Torts 740-41 ( 1971 ).

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1998] RIGHTS AND STATUS OF ILLEGITIMATE CHILDREN 297

The term "illegitimacy" is derived from the Latin illegitimu

accordance with the law". Procreation within legally or socially
between the man and woman is the accepted norm. Though t
societies based on their social and cultural traditions as regards the
with which laws and customs governing marriage relationshi
observed, there has been universal disapproval of children bein

While promiscuity might be tolerated in some societies, it is

Thus one reason for not recognising the status of children born w
union could be to discourage promiscuous or illicit relations.
born out of such union would be stigmatised and subjected to disc
might act as a refraining factor for parents indulging in sexual a
propriety of making children suffer in order to obtain conformit
a matter of debate.

Children born outside wedlock are sought to be distinguis

also on the ground that conceding the same status to them wi
wedlock would adversely affect the rights of the wife and t
marriage. The sharing of physical company and properties betw
and outside wedlock would be at the expense of the former,
stability of marriage would be threatened.

Another argument in support of discrimination or non-re

illegitimate children could be that ascertainment of paternity of
wedlock may not be as easy as that of a child bom within marr
public policy marriage should be given a legal status. The con
basis even though marriage is no foolproof evidence for establi
to the mother is her husband's; there could be instances wher
result of an adulterous relationship of the wife; and convers
where there could be convincing evidence of paternity even
married to the father of the child. However, since no situati
unassailable and irrebutable, legal systems the world over award
of legitimacy for children born within marriage. While children
legitimate by law or are legitimated by law enjoy some degree
couple who are not married, and worse, where the paternity of t
in a very unenviable position. Children have no role to play in
where the woman is a victim of rape, they are in the world be
capable of making a choice indulge in a relationship and brin
children suffer for the impulsive acts of adults is very unfair on

The form and degree of discrimination or condemnation of

from society to society as also from time to time. During the
and social attitudes reflect a tolerant and liberal attitude towar
indicated by legislative measures according equal rights to ille
recording of illegitimacy status on birth records and establishm
to care for children. In New Zealand, as a result of the Status o
distinction is drawn between the status of children born to m
born to unmarried parents. At common law, an illegitimate chi

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298 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 40

no relationship with the father, and initially not even w

statutory enactments7 narrowed down the distinction
children and also widened the concept of legitimacy. T
may be legitimated if their parents marry subsequent
measures to mitigate the hardships of children born ou
marriage, the basic distinction between legitimacy and i
social and legal fall-outs remains.

The extent of social stigma and legal discrimination

illegitimacy of a child. A child may be illegitimate und

(i) The mother is a victim of sexual assault, or is a s

of the father is unknown;

(ii) The child is the result of an adulterous act or re

(iii) The parents get married after the birth of the c

(iv) The marriage of the parents suffers from a leg

While the children in the first three categories are

hardly any status and there is no legal process under In
them, the last category of children can be legitimated
personal laws. These children are deemed to be legitim
their parents was valid. Though in law such children ar
of legitimately born children, in practice, in some
discrimination.

Presumption of Legitimacy

Under the law of evidence, there is a presumption in f

born during wedlock.8 The force of this presumption in
remark that "....we may almost say that every child bo
the legitimate child of her husband".8" In India this presu
under section 112 of the Evidence Act 1872 which
presumption that a child born during the subsistence o
days after its dissolution is a legitimate child unless no
the relevant time can be shown. Judicial interpretation
however, are complex and it is not easy to rebut the pre
no legislation either, which permits a court to allow b
presumption. Reference may here be made- to a recent j
where in an application by a wife for maintenance for he
denied that he was the father. He made an application f
to determine the child's paternity. The same was not

7. See, e.g. Legitimacy Act 1976, (U.K.) Family Law Reform Act
8. Under the Muslim law, a child born during the iddat period (aft
husband) is presumed to be the legitimate child of the divorced
8a. Pollock and Maitland, The History of English Law 395 (1895).
9. Goutam Kundu v. State of West Bengal AIR 1993 SC 2295.

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1 998] RIGHTS AND STATUS OF ILLEGITIMATE CHILDREN 299

section 112 of the Evidence Act, the birth of a child during th

marriage is conclusive proof of the child's legitimacy. The or
terms that courts cannot order blood tests as a matter of course
prima facie case and access is ruled out completely. It is signi
that this presumption is applicable only in respect of children
lawfully married. Where the marriage itself suffers from a leg
of legitimacy under the Evidence Act cannot be drawn. In suc
dealing with legitimation under the personal laws would apply.

Legitimation

"While legitimacy is a status which results from certain facts, legitimation is a

proceeding which creates a status which did not exist before".10 This status, e.g., can be
conferred on a child whose parents married after the birth of the child or in cases where
the marriage was performed in breach of certain conditions.

Muslim Law does not recognise legitimation' but a child can be acknowledged as
legitimate in certain situations viz. where (a) the paternity of the child is either not
known or is not established beyond doubt; (b) it is not proved that the child is the offspring
of illicit intercourse ( zina)' and (c) the circumstances are such that marriage between the
acknowledger and the mother of the child is an impossibility. This is known as the
doctrine of acknowledgement of paternity. A valid acknowledgement is not revocable
and gives rights of inheritance to the child.11

The conditions for a valid marriage are laid down under all personal law statutes.
While breach of some conditions is considered more serious and the marriage is rendered
void, non-compliance of others renders a marriage voidable only. The basic distinction
between a void and voidable marriage is that while in the former there is no legal status
conferred on the parties and the marriage is void ab initio i.e., right from inception in
the latter, all rights and obligations of matrimony subsist until the marriage is annulled
by the court. Besides, a void marriage may be declared a nullity at the instance of either
party, but in case of a voidable marriage, the decree of annullment can be made by the
court at the instance of the aggrieved party. As regards the status of children, while
children of voidable marriages were legitimate, those born out of a void marriage were
considered to be illegitimate under the Hindu Marriage Act 195512 (as also under the
Special Marriage Act 1954).13 Children of a void or voidable marriage which has been
annulled by a decree would be deemed to be the legitimate children of such parties for
purposes of inheriting their parents property. Though this provision was aimed at
protecting the rights of children whose parents entered into wedlock without strictly
observing the legal requirements for the marriage, it did not serve this purpose, as children
could be legitimated only if the parents obtained a decree of nullity. In other words, if
the parents of a void marriage failed to go to court for a nullity decree, the children
would remain illegitimate. This is how the courts also interpreted the sections. Thus,

10. See A. A. A. Fyzee, Outlines of Muhammedan Law 1 89 (1974).

II. Id at 196.
12. S. 16HMA.
13. S. 24SMA.

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300 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 40

for acts and omissions of parents - initially the act of enter

and thereafter the omission to obtain a decree of nullity -
stigma and disadvantages of illegitimacy.

This provision was criticised in several judgments,14 as it a

with the intention of the legislature, which obviously was
children of a void marriage if a decree to that effect was n
deliberated by the Law Commission15 and there were two p
condition of a decree of nullity should be done away with
apply only if at the time of intercourse resulting in birth (or
the marriage where the marriage follows the act) both or eith
believed that the marriage was valid. The latter proposal d
pointed out that, in the context of the status of children b
views could be possible: (a) such children should be regard
status; (b) they should be deemed legitimate for purposes of
provided the marriage was contracted bonafide without kno
(c) they should be entitled to succeed to their parents in a
entitled to succeed to other relations in all cases.

The first view represents public policy whereby marriages in violation of certain
requirements should not be recognised at all. And that in case of conflict between the
interests of the general public and of children of such marriage, the former should prevail.
The fourth view is at the other end of the continuum which suggests that these children
should be entitled to succeed to relations other than parents as well, in all cases. The
Law Commission found the third view to be fair to the innocent children and also in
harmony with changing social opinion. While it did not give legitimacy to the marriage
relationship as such, it sought to mitigate the hardship on children. The Commission
therefore recommended revision of section 16. In 197616 the section was amended.
Consequently the position under the HMA and SMA is that notwith- standing the fact
that no decree of nullity has been obtained in the case of a void or voidable marriage, the
children would be deemed to be legitimate as if the marriage was valid. The position
would be the same whether such child is born before or after the amendment of 1976.
Under the Parsi Marriage and Divorce Act 1936, as amended by the Amendment Act of
1986, 17 "notwithstanding that a marriage is invalid under any of the provisions of sub-
section(l) [of section 3] any child of such marriage who would have been legitimate if
the marriage had been valid, shall be legitimate". The conditions prescribed for a marriage
under section 3(1) are that the parties should not be within the prohibited degrees of
consanguinity or affinity as prescribed, it should be solemnised according to the Pani
form of ceremony called 4 Ashirvad' and the parties should not be below the age of 2 1 (in
case of boy) and 1 8 (in case of a girl). Thus only children born of a marriage solemnised

14. E. g. Gouri Ammal v. Tulsi Ammal AIR 1962 Mad 510; later affirmed in Tulsi Ammal v. Gouń
Ammal AIR 1964 Mad 118; Thirumurthi Ramayammal v. Thirumurthi Muthammal (1974) 1 Mad U 34.
15. Law Commission of India "Fifty Ninth Report on Hindu Marriage Act 1955 and Special Marriage
Act 1954" [1974],
16. Vide Marriage Laws Amendment Act 68 of 1976; s. 26 of the Special Marriage Act 1954 was
similarly amended.
17. S. 3(2).

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1 998] RIGHTS AND STATUS OF ILLEGITIMATE CHILDREN 30 1

in contravention of any of the above provisions would be consid

When there is no marriage at all or where the marriage is void b
born of the union will have no legal status.

Under the Divorce Act 1869, children of marriages annulled

contracted in good faith and with full belief of the parties that
dead, or on ground of insanity are entitled to succeed in the sam
children, to the estate of the parent who at the time of the mar
contract.18 Thus if a father is incompetent to enter into a marriag
because his wife was alive, then the children will succeed only to
the father. This is a very unfair and illogical provision. It does
legitimacy but only a concession under certain situations to succ
parent who is competent to contract the marriage. How is 'goo
In cases of bigamy specially it would be encouraging men to enter
without fear of incurring any risk to their properties being inhe
The law was enacted over 130 years ago during the British Colo
used to come to India, enter into relationships, have children a
them. These children had no rights against the fathers.

It is pertinent, however, to note that the status of legitimac

statutes only on children of void and annulled voidable ma
solemnisation of a marriage needs to be proved in order to inv
legitimation. Children of a relationship where there is no marria
covered and enjoy no status. Besides, even those children who ar
of the provisions of the statutes, do not enjoy a status of complete
who are legitimate. Though the law says "any child of such ma
been legitimate if the marriage had been valid, shall be legitimat
obvious both in law and in practice.

Inequality between legitimate birth and illegitimacy is statu

several aspects.

Inequality in Statutes

Succession

The law puts an embargo on the property rights of such children as they can succeed
only to their parents and not other relatives.

The Succession Act 1926 does not recognise illegitimate relationship. It recognises
relationship flowing out of lawful wedlock alone. Likewise under section 3(i) of the
Hindu Succession Act 1956, "related" means related by legitimate kinship. Provided
that illegitimate children shall be deemed to be related to their mother and to one another
and their legitimate descendants shall be deemed to be related to them and to one another...
Thus, a child born outside wedlock is not a legitimate child for purposes of this provision
18. S. 21.
19. S. 26(3) SMA and s. 16(3) HMA.

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302 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 40

as the word "related" is specifically restricted to legitima

sons and daughters are therefore not to be reckoned as sons
except to the extent allowed by the proviso. They can only
of property of their mother under section 14 of the HS A.

The objects and reasons of cl.3(i)(j) are as follows:

"The expression 'relate' is so defined that the rights of

safeguarded as against their mother and their own legitima

However, in respect of children who have been legitim

16(1) of the HMA (and also SM A) as amended in 1976 the r
conferred even on those children who are born of a void
children are treated as legitimate as if the marriage of thei
Margabandhu v. Kothandarama 21 the argument that child
be entitled only to the share of their father in the joint pr
equal shares with legitimate sons was not accepted. It was
ancestral properties liable to partition. Therefore when dem
sharers have to divide properties equally among themselv
would get what legitimate sons are entitled to.

In Jagarlamudi Sujata v. J.J. Krishna Prasad 22 it was h

void marriage inherit only to the property left by their par
and not others, they are not necessary parties in a suit for
family property. However, a subsequent Division Bench o
that such a child is related to its parents within the meanin
by virtue of section 1 6 of the HMA. The proviso to section
to those children who are not clothed with legitimacy und
of section 16( 1 ) HMA as amended in 1976, the son of a vo
be equated with the natural sons and treated as coparceners f
father whether the property be originally joint family prope
is that such a child cannot seek partition during the lifetime

Under the Hanafi school of Muslim Law an illegitimat

the child of its mother only for purposes of inheritance and
from other relations with whom it is related through the
inherit from its putative father or any other relations throu
school, an illegitimate child is treated as a nullius filius and
parents.24

Guardianship

The Hindu Minority and Guardianship Act 1956 provides that while in the case of a
minor boy or a minor unmarried girl it is the father who is the natural guardian and the

20. See Daddo v. Raghunath AIR 1979 Bom. 176.

21. AIR 1984 Mad. 270.
22. AIR 1992 AP 291.

23. Rasala Surya Prakash Rao v. Rasala Venkate s hw ara Rao AIR 1992 AP 234.
24. Mulla's Principles of M ahomedan Law 19th ed. at 8 1 and 99 (1990).

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1998] RIGHTS AND STATUS OF ILLEGITIMATE CHILDREN 303

mother comes only after the father, the order reverses in case of
mother is the natural guardian and the father comes only after he
and Wards Act 1 890, however, which is applicable to everybody i
community, there is no distinction on the basis of the marital s
child. A minor, under the Act is defined as a person who has
majority under the Indian Majority Act 1875 and a "ward" m
person or property or both there is a guardian. The predomina
appointment of a guardian is, however, the welfare of the child, u

Adoption

Statutory provisions for adoption exist only under the Hindu Law.27 Prior to the
Act, only sons could be adopted but an illegitimate son could not be adopted. The Act
imposes no such restriction. Section 2, which is the applicable clause however
specifically distinguishes between a legitimate and illegitimate child and provides that
in case of an illegitimate child, the mother can give the child away in adoption without
the consent of her paramour. In case of a legitimate or legitimated child the primary
right of giving in adoption is the father's and the mother cannot exercise that right during
the lifetime of the father unless he is disqualified.28

Maintenance

Under the provisions of the Code of Criminal Procedure 197329 which is applic
to all communities irrespective of caste and religion, every child who is unable to mai
itself is entitled to be maintained. Though the word "illegitimate" is specif
mentioned there is no distinction or discrimination in the entitlement on the basis of
marital status of the parents of the child. The only conditions are that the child should be
a minor and should be unable to maintain itself. There is also a provision for maintenance
of a child who has attained majority when such child is by reason of any physical or
mental abnormality or injury, unable to maintain itself.

Apart from this uniform and secular legislation, there are provisions for maintenance
of children under the personal law statutes as well. Under the Hindu Adoptions and
Maintenance Act 1956, (HAMA) minor children - whether legitimate or illegitimate,
are entitled to be maintained by their father or mother.30

In K.M. Adam v. Gopala Krishnan 31 the court imposed an obligation on a Muslim

father to support his illegitimate Hindu child born to a Hindu woman. There was no

25. S. 6(a) and (b).

26. S. 1 7 GWA and s. 1 3 HMG Act.

27. Hindu Adoption and Maintenance Act 1956.

28. Id s. 8(c).
29. S. 125(1) (b) and (c).
30. S. 20; see also Kalla Maistry v. Kanniammul AIR 1963 Mad. 210 where it was held that the rule of
Hindu law that illegitimate children born of adulterous intercourse would not be entitled to rank as heirs of sudras
applies only to inheritance as heirs and does not apply to a claim for maintenance as illegitimate children.
31. AIR 1974 Mad. 232.

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304 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol.40

marriage and it was argued on behalf of the father that nei

parties nor under the provisions of the HAMA he was ent
was held that by virtue of clause (b) in the explanation to
respondent (child) is and has to be considered as a Hindu b
the mother) is a Hindu. The Act was accordingly held
pointed out here that under the old Hindu law an illegitim
concubine ( Avardudhastree ) but not an illegitimate daughte
but under the 1956 Act even an illegitimate daughter is enti
an illegitimate son. The provisions of the Act, however is

Illegitimate sons and daughters are "dependants" under

they are entitled to get maintenance from the estate of thei
22 - in case of a son till he is a minor and in case of
unmarried. It is pertinent to note that no other personal law
the HAMA, 1956. Thus maintenance of illegitimate ch
governed only by the provisions of the Code of Criminal
provisions under the matrimonial laws are applicable only
or those who are legitimated under the law.

Domicile

Every person acquires at birth, a domicile of origin which determines the law by
which he is to be governed. The domicile of the child however, depends on the marita
status of its parents. A legitimate child born during the lifetime of the father has th
domicile of origin in the country in which the father is domiciled at the time of his birth
in case of an illegitimate child, the domicile of origin would be the country in which the
mother was domiciled at the time of the child's birth.33

Labour legislations

Labour legislations seek to protect and ensure the interests of the workers and their
dependants. The distinction between legitimate children and non-legitimate children
however can be seen even in these laws. The only legislation which confers complete
equality is the one which provides maternity benefits to a woman irrespective of whether
the child is born within marriage or outside it.

maternity benefits

Under the Maternity Benefit Act 1961 34 all women are entitled to the benefits of
maternity leave and wages during the prescribed leave period. A reference may here b
made to a circular issued by the department of telecommunications a few years back

32. See Muktabai v. Kamalaksha AIR 1960 Mys. 182; Jaiwanti v. Arvind AIR 1968 Bom. 314.
33. Ss. 7 and 8 of the Indian Succession Act 1925. See also Kedar Pandey v. Narain Bikram
Sha AIR 1966 SC 160.
34. S. 5.

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1998] RIGHTS AND STATUS OF ILLEGITIMATE CHILDREN 305

all its offices not to grant maternity benefits to unmarried

occasion for issuing such instructions was an application made f
an unmarried telephone operator at Gandhidham Exchange, Bh
claimed that she was married in 1980 but the department all
married woman but was only living with a man who was alrea
also made complaints that she was having illicit relations with
Inquiries were made which revealed that she was "living with
treated this as a case of "moral turpitude" and denied her matern
was taken up by the Minister of State for Women's Welfare a
withdrawn. In February, 1986 the Ministry of Labour issued ins
benefits should be given to all employed women - married or
denial of maternity benefit to a woman employee/worker bec
appears anti-woman, anti-human, and anti-worker and illegal.
instructions already issued not to grant maternity benefit to unm
workers should be withdrawn immediately, and maternity benef
granted, to a woman employee/worker without regard to her m

Though this order is directly connected with women and

with children as such but it indirectly does indicate a concern
needs special care and attention of the mother. All other mother-
provisions - like nursing breaks - also make no distinction be
basis of the marital status of their parents.

compensation and insurance

Under the Workmen's Compensation Act 1923 which provid

certain classes of employers to their workmen, of compensatio
accident a "dependent" includes "a minor illegitimate son, an
daughter or a daughter legitimate or illegitimate if married an
and a minor".35 It is significant to note however that while a le
case a "dependent" for purposes of getting the compensation, th
child is conditional on his/her being "wholly or in part depende
workman at the time of his death".36 Thus legitimate child whet
on the deceased employer, is entitled to claim compensation
child has to prove that he/she was dependent on the deceased.

The position is the same under the Employees State Insura

illegitimate child, unlike the legitimate child cannot seek benef
he/she is wholly or partially dependent on the earnings of th
his death. Also he has no place within the meaning of the term
the Act.38

35. S. 2(i)(d)(iii)(c).
36. S. 2(iii).
37. S. 2(6-A).
38. S. 2(ii).

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306 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol.40

Social Stigma and Practical Problems

Apart from, or in fact more than, the legal recognition o

a child born within and outside wedlock, it is the societal re
which add to the hardship of such children. These can be
like - birth registration, name, school admission, marri
7(1) of the 1989 Convention, "The child shall be registered
shall have the right from birth to a name, the right to acq
possible, the right to know and be cared for by his or her
of children whose paternity is unknown or whose parent
married, difficult situations arise. Though there are laws
birth of every child,39 it is common knowledge that the aff
born outside marriage begins right from birth. The birth
column requiring father's name and if that is not supplied
and the applicant has to face harassment and embarrassm

It is common knowledge that for all official transacti

the father's name to be mentioned in the forms as also h
embarrassing at times but also unjustified and discrimina
even where there is a column for the guardian's name, ther
the father's name as well. Thus even if the mother is th
incomplete without the father's name. In 1990 there wa
workers in red light area in Delhi who were denied admi
they could not fill up the father's name in the application
the Supreme Court which issued directions to the admini
to delete the column requiring the father's name and to a

A mention may here be made of a private member's Bill

in 1990, known as the Mother's Lineage Bill 1990. The s

In order to make the man-woman equality a reality th

to liberate itself from many obsolete concepts which
possessive property con-scious, male-dominated socie

The concept of "illegitimacy" and the practice of trac

from the father's side is one such reactionary and fo
reactionary attitudes, which form the unspelt basis of
non-official practices, and the decisions of the court w
completely if the egalitarian principles of the Constitu
elevate our social life.

The Bill sought to make it unlawful for anyone to compel another person to fill and
sign any form whatsoever which provides for establishing a person's lineage only through
his or her father, or to prohibit him or her to write his or her mother's name instead.

The Bill has, however, not seen the light of the day. The recent Supreme Court
judgment on guardianship40 seeks to remove the hardship in some cases where the
39. Registration of Birth and Deaths Act 1969.
40. Ms. Githa Hariharan v. Reserve Bank of India with Dr. Vandana Shiva v. Jayanti Bandhopadhyaya
1999(1) SCALE 490.

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1998] RIGHTS AND STATUS OF ILLEGITIMATE CHILDREN 307

father's name and signatures are insisted upon. Though it does

issue of children born of non-marital parents, by implicatio
cases where the mother alone is the guardian and caretaker of

A reference may here be made of a case41 from the United

born to unmarried parents was given the surname of the moth
mother as well as her two children from her former marriage
surname. The father of the child applied under section 8 of th
an order that the child be known by his surname. Though his a
the trial court, the same was reversed in appeal. The court hel
jurisdiction to make the order sought but in view of the circu
fact that the name in which the child was registered was the mo
the registration and also that of her other children, there was no
of the child's surname. "Only strong countervailing grounds w
a name once registered", and the court found none in the case.

Conclusions

Despite international and national conventions prohibiting discrimination against

any child and imposing responsibilities on parents, society and the state to protect it
every manner, an illegitimate child is still exposed to enormous social, emotional an
legal deprivation and discrimination. While the parents can foresee the consequences
their socially or legally disapproved alliance, the child has no choice in the matter. An
unfortunately he is the one worst affected. Even though there are provisions under som
personal laws providing for legitimation of children under certain circumstances t
same are not available to all marriages in breach of any provisions of the law; nor
legitimation provided under all personal laws. Even where the provision exists, it doe
not accord equal status to legitimated children along with legitimate children. In Ind
bigamous marriages are still rampant despite laws against it. Since penal consequenc
follow the solemnisation of a bigamous marriage the parties seek to wriggle out by
showing that no marriage in fact took place. The result is that even under laws whic
provide for legitimation of children of bigamous marriage, since no marriage is establish
the provision of legitimation is not available. As a result, these children are treated
illegitimate with no rights except maintenance under section 125 of the Cr.P.C., provided
paternity is not disproved. In case of children where the father is not known,42 childre
are almost destitute. In the absence of state social security provisions or financial
assistance to unwed mothers, the mother is often left with no choice except to aband
the child. These children are either picked up by the police as neglected or abandone
children and remanded to an Institution/Home or by social organisations or foundlin
homes for being given away in adoption. Needless to say that the chances of abuse a
exploitation of such children are very high.

41. Dawson v. Wearmouth [1998] 2 WLR 392 (CA).

42. Such as in case of sexual assault. In the Poona hysterectomy operations on mentally handicappe
inmates of a state-run institution in 1994, the fear of such assaults which could result into pregnancy was one
factor which weighed with the authorities' for ordering the operation.

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308 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 40

An illegitimate child does not get the father's name. Perhaps there is a ra
distinction between a child born into a family and one born outside and since su
would normally not be living with the father but with the mother, it might sound
that the child should be identifiable with the mother; and laws on guardiansh
adoption fall in line with this reasoning. However, from the child's pers
discrimination and bias is evident. A child who is known by the mother's name, s
in our patriarchal set-up, can be singled out as being born out of wedlock.

It is significant to note that the position of an adopted child is more akin to a n

child for all legal and social purposes. An adopted child in fact, may not be the b
child of either of the parents whereas a non-marital child is the biological child o
the parents and yet there is a distinction which is based only on the legal relat
between its parents. It may be argued that if a child from outside marriage w
genetic link with the parents can be brought into the family and conferred a status
legitimacy simply by a process recognised by law or custom, there is no reason
child who, in fact is the biological child should be differently treated. The justif
for this is perhaps founded on the factual situation of actual living in family relat
While an adopted child is by choice deliberately brought into the family to be a com
of the family and the law recognises this status, a child born of an adulterous relat
could be an accident with the partners never having intended the same. However
is no justification to legally deprive the child of his rights qua his parents and s
stigmatise him. Every child, whether born in or outside of wedlock is entitled
same social protection under the Universal Declaration of Human Rights 1948.43

The child's right to the company of his father should be viewed from his (c
perspective. Under article 9(3) of the UN Convention on the Rights of the Child
"states parties shall respect the right of the child who is separated from one
parents to maintain personal relations and direct contact with both parents on a
basis, except if it is contrary to the child's best interests."

The factual legal position however is that the law absolves the father of his
towards his illegitimate offspring and thus correspondingly, deprives the child of
rights - including the right to his company. The primary guardian of an illeg
child is the mother as against the father in case of legitimate child. The objectio
to the mother's right but to the different legislative provision depending on wheth
child is born in or outside wedlock. The sole factor, it is submitted, should be t
interests of the child rather than the legal relationship of its parents.

Recognition of better status and more familial/parental obligations would

reducing the incidence of illicit cohabitation for fear of incurring responsibilit
children born outside wedlock. A reference may be made to two American cases4
are of great significance in the context of such children. In Zepeda the defen
concealed the fact that he was a married man and induced the plaintiff's mother
sexual relations with him by promising to marry her. As a result of this union the
was born illegitimate. He filed a suit for damages on the ground that the def

43. Ait. 25(2).

44. Zepeda v. Zepeda 41 111. App. 2d 240, 190 N E. 2d 849 (1963) and Williams v. State 18 N Y. 2d 481,
223 N.E. 2d 343, 276 N.Y.S. 2d 885 (1966).

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1998] RIGHTS AND STATUS OF ILLEGITIM ATE CHILDREN 309

damaged his person, property and reputation by causing him

further alleged that he was deprived of the rights to have a nor
father, to inherit from his father and from his other paternal anc
the stigma of bastardy. The Circuit Court of Cook Country, Il
the ground that there was no cause of action. On appeal, it
conceiving a child who is subsequently born illegitimate is a to
such constitutes a cause of action. Damages, however, were
held that this might encourage children to file suits against
their birth under any disadvantaged or adverse conditions e.g.
in a particular race or in family with unsavoury reputation, and
dismissal of the plaintiff's claim was affirmed on the ground
not be indulged in where the result could be as sweeping as he

In Williams a patient at a state mental hospital was forcibly r

and a daughter was born. The mother and daughter filed a claim
against the state for negligence in providing adequate protec
she was in the hospital. For the child's claim it was alleged that
she had been "deprived of property rights; deprived of a no
life; deprived of proper parental care, support and rearing;
stigma of illegitimacy The court of claims held that the
victim and she was not barred from recovering damages. How
was turned down, and it was held that an infant had no cause of
negligently permitting the mother's rape and thereby causin
Judge Keating in his concurring order observed:46 "The dam
determination as to whether non-existence or nonlife is prefera
with all the hardship attendant thereon. It is impossible to m

One cannot ignore the fact that despite ameliorative measu

is in a very disadvantageous position whether it is in terms
property rights or social esteem. The problem has to be tackle
by discouraging illegitimate birth and secondly by removing
inequalities. The fear of being saddled with the responsibiliti
deter many adults from indulging in illicit sexual cohabitation

Besides, the law of adoptions needs to be liberalised. It is c

many children are languishing in orphanages and other instituti
up by families who could provide them with the emotional, s
of a home. A vast number of these children are children born
been abandoned by the mothers. The only law that provides
Adoptions and Maintenance Act 1956 which is applicable to
law permitting adoption amongst other communities and attem
no success. A uniform adoption law giving a right to adopt t
bring happiness to the adopting parents but also provide child
a status and all-round security.

45. Id at 859.

46. Williams supra note 44 at 485.

47. See, e.g. Rema Nagarajan, "6 babies, all dressed up, nowhere to go", Hindustan Times .
(Marchó, 1999).

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310 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 40

The goal of attaining legal equality may not pose insu

have already started moving in that direction. More diff
and discrimination attached to such children. One indication of this is the fact that the
English and vernacular phrase for an illegitimate is used as a term of highest abuse.
When legal values undermine recognition and status of a particular group, negative
social attitudes continue to be endorsed. Illegitimacy is a major issue in the context of
child rights and needs to be addressed in a holistic manner both at the social and legal
levels.

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