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 ofHuman 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: Part 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" ? Part IP 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 oftheRights of the Child 1989 arts 1-41
2 Id art 2
^ id arts 42-45

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progress made by the state parties in fulfilling the obligations and part III4 deals with
ratification, accession and amendment.
The paediatric conscience of the Indian Constitution is depicted in the various
provisions for the welfare of children. Article 23 prohibits traffic in human beings and
forced labour and article 24 prohibits employment of children below the age of 14 to
work in any factory, or mine or other hazardous employment. Article 39(e) directs the
state to secure conditions in favour of children so that their tender age is not abused and
they are not compelled by economic necessity to take up jobs unsuited to their age and
strength, while under article 39(f) the state is directed to ensure that "children are given
opportunities and facilities to develop in a healthy manner and in conditions of freedom
and dignity and that childhood and youth are protected against exploitation and against
moral and material abandonment". Article 45 provides for free and compulsory education
for all children up to the age of 14. Apart from these constitutional provisions, there are
various laws, national policies and programmes for the welfare of children. The National
Policy for Children 1974 lays down that, "it shall be the policy of the state to provide
adequate service to children, both before and after birth and through the period of growth
to ensure their full physical, mental and social development".
Pursuant to the above international and national directives, various plans of action
and schemes have been adopted and laws enacted to ensure all round protection of
children.

Children Bom Outside Wedlock

Though every child needs special care and protection because of his physical and
mental vulnerability, some children are more vulnerable than others because of their
physical, socio-economic cultural or other conditions. Children born to parents whose
relationship is not socially or legally recognised is one such category of children who
suffer social reprobation and legal discrimination. These children are termed as
illegitimate or bastard, a term of abuse or contempt in common parlance. As observed
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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The term "illegitimacy" is derived from the Latin illegitimus which means "not in
accordance with the law". Procreation within legally or socially recognised relationships
between the man and woman is the accepted norm. Though there are variations in
societies based on their social and cultural traditions as regards the flexibility or stringency
with which laws and customs governing marriage relationships are to be applied and
observed, there has been universal disapproval of children being born outside wedlock.
While promiscuity might be tolerated in some societies* it is nowhere commended.
Thus one reason for not recognising the status of children born without a legally sanctioned
union could be to discourage promiscuous or illicit relations. The fear that children
born out of such union would be stigmatised and subjected to discrimination and hardship
might act as a refraining factor for parents indulging in sexual activities. The ethics and
propriety of making children suffer in order to obtain conformity from adults is however,
a matter of debate.
Children born outside wedlock are sought to be distinguished and discriminated
also on the ground that conceding the same status to them with children born within
wedlock would adversely affect the rights of the wife and the children born within
marriage. The sharing of physical company and properties between children born within
and outside wedlock would be at the expense of the former, and thus the peace and
stability of marriage would be threatened.
Another argument in support of discrimination or non-recognition of status of
illegitimate children could be that ascertainment of paternity of a child not born within
wedlock may not be as easy as that of a child born within marriage and so as a matter of
public policy marriage should be given a legal status. The contention is not without
basis even though marriage is no foolproof evidence for establishing that the child born
to the mother is her husband's; there could be instances where the child could be the
result of an adulterous relationship of the wife; and conversely, there could be cases
where there could be convincing evidence of paternity even when the mother is not
married to the father of the child. However, since no situation can be completely
unassailable and irrebutable, legal systems the world over award a presumption in favour
of legitimacy for children born within marriage. While children who are presumed to be
legitimate by law or are legitimated by law enjoy some degree of status, those born to a
couple who are not married, and worse, where the paternity of the child is unknown are
in a very unenviable position. Children have no role to play in their own birth. Except
where the woman is a victim of rape, they are in the world because two adults who are
capable of making a choice indulge in a relationship and bring forth a child. Making
children suffer for the impulsive acts of adults is very unfair on them.
The form and degree of discrimination or condemnation of such children, varies
from society to society as also from time to time. During the past few decades statutes
and social attitudes reflect a tolerant and liberal attitude towards these children. This is
indicated by legislative measures according equal rights to illegitimate children, non-
recording of illegitimacy status on birth records and establishment of foundling homes
to care for children. In New Zealand, as a result of the Status of Children Act 1969, no
distinction is drawn between the status of children born to married parents and those
born to unmarried parents. At common law, an illegitimate child enjoyed no status, had

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no relationship with the father, and initially not even with the mother. However, later
statutory enactments7 narrowed down the distinction between the two categories of
children and also widened the concept of legitimacy. Thus children born illegitimate
may be legitimated if their parents marry subsequently. However, despite legislative
measures to mitigate the hardships of children born outside wedlock or outside a valid
marriage, the basic distinction between legitimacy and illegitimacy with its concomitant
social and legal fall-outs remains.
The extent of social stigma and legal discrimination depends on the degree of
illegitimacy of a child. A child may be illegitimate under the following circumstances:
(i) The mother is a victim of sexual assault, or is a sex worker and the identity
of the father is unknown;
(ii) The child is the result of an adulterous act or relationship;
(iii) The parents get married after the birth of the child;
(iv) The marriage of the parents suffers from a legal flaw;
While the children in the first three categories are termed as illegitimate with
hardly any status and there is no legal process under Indian law to confer legitimacy on
them, the last category of children can be legitimated under the provisions of some
personal laws. These children are deemed to be legitimate as if the marriage between
their parents was valid. Though in law such children are accorded a status equal to that
of legitimately born children, in practice, in some respects at least they suffer
discrimination.

Presumption of Legitimacy

Under the law of evidence, there is a presumption in favour of legitimacy of a child

born during wedlock.8 The force of this presumption in English law is indicated by the
remark that "....we may almost say that every child born to a married woman is in law
the legitimate child of her husband".8* In India this presumption is statutorily recognised
under section 112 of the Evidence Act 1872 which lays down as a general rule of
presumption that a child born during the subsistence of a legal marriage or within 280
days after its dissolution is a legitimate child unless non-access between the parties at
the relevant time can be shown. Judicial interpretations of the principle of non-access
however, are complex and it is not easy to rebut the presumption of legitimacy. There is
no legislation either, which permits a court to allow blood test evidence to rebut the
presumption. Reference may here be made-to a recent judgment of the Supreme Court9
where in an application by a wife for maintenance for herself and her child, the husband
denied that he was the father. He made an application for blood group test of the child
to determine the child's paternity. The same was not granted. It was held that under

7. See, e.g Legitimacy Act 1976, (U K ) Family Law Reform Act 1987 (U K)
8. Under the Muslim law, a child born during the iddat period (after divorce or death of the
husband) is presumed to be the legitimate child of the divorced or deceased husband.
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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section 112 of the Evidence Act, the birth of a child during the continuance of a valid
marriage is conclusive proof of the child's legitimacy. The order laid down in explicit
terms thai courts cannot order blood tests as a matter of course unless there is a strong
prima facie case and access is ruled out completely. It is significant, however, to note
that this presumption is applicable only in respect of children where their parents are
lawfully married. Where the marriage itself suffers from a legal flaw, the presumption
of legitimacy under the Evidence Act cannot be drawn. In such cases the provisions
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).,3 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 189 (1974)
11 Wat 196
12 S 16HMA
13 S 24SMA

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for acts and omissions of parents - initially the act of entering into a void relationship
and thereafter the omission to obtain a decree of nullity - the children suffered the
stigma and disadvantages of illegitimacy.
This provision was criticised in several judgments,14 as it appeared to be inconsistent
with the intention of the legislature, which obviously was not to render illegitimate
children of a void marriage if a decree to that effect was not obtained. This issue was
deliberated by the Law Commission15 and there were two proposals made, viz. (i) the
condition of a decree of nullity should be done away with and (ii) the section should
apply only if at the time of intercourse resulting in birth (or at the time of celebration of
the marriage where the marriage follows the act) both or either of the parties reasonably
believed that the marriage was valid. The latter proposal did not find favour. It was
pointed out that, in the context of the status of children born of a void marriage four
views could be possible: (a) such children should be regarded &$filius nullius with no
status; (b) they should be deemed legitimate for purposes of succeeding to their parents
provided the marriage was contracted bonafide without knowledge of any impediment;
(c) they should be entitled to succeed to their parents in all cases; (d) they must be
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 Parsi
form of ceremony called 'Ashirvad' and the parties should not be below the age of 21 (in
case of boy) and 18 (in case of a girl). Thus only children born of a marriage solemnised

14. E. g. Gouri Ammal v. Tulst Amrnal AIR 1962 Mad 510; later affirmed in Tulsi Ammal v. Goun
Ammal AIR 1964 Mad \\%\Thirumurthi Ramayammal y.Thirumurthi Muthammal (1974) 1 MadWiA.
15. Law Commission of India "Fifty Ninth Report on Hindu Marriage Act 1955 and Special M arriage
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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1998] RIGHTS AND STATUS OF ILLEGITIMATE CHILDREN 301

in contravention of any of the above provisions would be considered to be legitimate.

When there is no marriage at all or where the marriage is void being bigamous, children
born of the union will have no legal status.
Under the Divorce Act 1869, children of marriages annulled on ground of bigamy
contracted in good faith and with full belief of the parties that the former spouse was
dead, or on ground of insanity are entitled to succeed in the same manner as legitimate
children, to the estate of the parent who at the time of the marriage was competent to
contract.18 Thus if a father is incompetent to enter into a marriage because of insanity or
because his wife was alive, then the children will succeed only to the mother and not to
the father. This is a very unfair and illogical provision. It does not confer status of
legitimacy but only a concession under certain situations to succeed to the estate of a
parent who is competent to contract the marriage. How is 'good faith* to be assessed?
In cases of bigamy specially it would be encouraging men to enter into such relationships
without fear of incurring any risk to their properties being inherited by their children.
The law was enacted over 130 years ago during the British Colonial rule. English men
used to come to India, enter into relationships, have children and went back leaving
them. These children had no rights against the fathers.
It is pertinent, however, to note that the status of legitimacy is conferred by the
statutes only on children of void and annulled voidable marriage. The factum of
solemnisation of a marriage needs to be proved in order to invoke the provision for
legitimation. Children of a relationship where there is no marriage what so ever are not
covered and enjoy no status. Besides, even those children who are legitimated in terms
of the provisions of the statutes, do not enjoy a status of complete equality with children
who are legitimate. Though the law says "any child of such marriage who would have
been legitimate if the marriage had been valid, shall be legitimate ..."19 discrimination is
obvious both in law and in practice.
Inequality between legitimate birth and illegitimacy is statutorily recognised in
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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as the word "related" is specifically restricted to legitimate kinship. The illegitimate

sons and daughters are therefore not to be reckoned as sons and daughters under the Act
except to the extent allowed by the proviso. They can only claim succession in respect
of property of their mother under section 14 of the HSA.
The objects and reasons of cl.3(i)(j) are as follows:
"The expression 'relate' is so defined that the rights of illegitimate children are
safeguarded as against their mother and their own legitimate offspring,"
However, in respect of children who have been legitimated by virtue of section
16(1) of the HMA (and also SMA) as amended in 1976 the right of inheritance has been
conferred even on those children who are born of a void or voidable marriage. Such
children are treated as legitimate as if the marriage of their parents had been valid.20 In
Margabandhu v. Kothandarama21 the argument that children of a void marriage would
be entitled only to the share of their father in the joint property and they cannot claim
equal shares with legitimate sons was not accepted. It was held that all suit items are
ancestral properties liable to partition. Therefore when demand for partition is made, all
sharers have to divide properties equally among themselves. Thus illegitimate sons
would get what legitimate sons are entitled to.
In Jagarlamudi Sujata v. JJ. Krishna Prasad22 it was held that as such children of
void marriage inherit only to the property left by their parents or succeed only to parents
and not others, they are not necessary parties in a suit for partition in respect of joint
family property. However, a subsequent Division Bench of the A.P. High Court held
that such a child is related to its parents within the meaning of section 3(i)(j) of the HSA
by virtue of section 16 of the HMA. The proviso to section 3(i)(j) of the HSA is confined
to those children who are not clothed with legitimacy under section 16. Thus by virtue
of section 16(1) HMA as amended in 1976, the son of a void or voidable marriage must
be equated with the natural sons and treated as coparceners for the properties held by the
father whether the property be originally joint family property or not. The only limitation
is that such a child cannot seek partition during the lifetime of the father.21
Under the Hanafi school of Muslim Law an illegitimate child is considered to be
the child of its mother only for purposes of inheritance and as such inherits from her and
from other relations with whom it is related through the mother. Such child does not
inherit from its putative father or any other relations through the father. Under the Shia
school, an illegitimate child is treated as a nullius filius and inherits from neither of its
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. SeeDaddo v Raghunath AIR 1979 Bom 176
21 AIR 1984 Mad 270
22 AIR 1992AP291
23 Rasala Surya Prakash Rao v Rasala Venkateshwaia Rao AIR 1992 AP 234
24 Mulla's Principles of Mahomedan Law 19th ed at 81 and 99 (1990)

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mother comes only after the father, the order reverses in case of illegitimate children; the
mother is the natural guardian and the father comes only after her.25 Under the Guardians
and Wards Act 1890, however, which is applicable to everybody irrespective of religion or
community, there is no distinction on the basis of the marital status of the parents of a
child. A minor, under the Act is defined as a person who has not attained the age of
majority under the Indian Majority Act 1875 and a "ward" means a minor for whose
person or property or both there is a guardian. The predominant consideration in the
appointment of a guardian is, however, the welfare of the child, under both the statutes.26

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 applicable
to all communities irrespective of caste and religion, every child who is unable to maintain
itself is entitled to be maintained. Though the word "illegitimate" is specifically
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 KM. Adam v. Gopala Krishnan*1 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. 17 GWA and s. 13 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. Kanniammal 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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marriage and it was argued on behalf of the father that neither under personal law of the
parties nor under the provisions of the HAMA he was entitled to maintain the child. It
was held that by virtue of clause (b) in the explanation to section 2(1) of the Act, the
respondent (child) is and has to be considered as a Hindu because one of his parents (i.e.
the mother) is a Hindu. The Act was accordingly held to be applicable. It may be
pointed out here that under the old Hindu law an illegitimate son of a permanently kept
concubine (Avardudhastree) but not an illegitimate daughter, was entitled to maintenance
but under the 1956 Act even an illegitimate daughter is entitled to maintenance alongwith
an illegitimate son. The provisions of the Act, however is prospective.32
Illegitimate sons and daughters are "dependants" under section 21 of the Act and
they are entitled to get maintenance from the estate of their putative father under section
22 - in case of a son till he is a minor and in case of a daughter, till she remains
unmarried. It is pertinent to note that no other personal law has a statute on the lines of
the HAMA, 1956. Thus maintenance of illegitimate children other than Hindus is
governed only by the provisions of the Code of Criminal Procedure. The maintenance
provisions under the matrimonial laws are applicable only to children who are legitimate
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 marital
status of its parents. A legitimate child born during the lifetime of the father has the
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 196134 all women are entitled to the benefits of
maternity leave and wages during the prescribed leave period. A reference may here be
made to a circular issued by the department of telecommunications a few years back to

32. SecMuktabai v. Kamalaksha AIR I960 MysA&2; Jaiwanti v. Arvind AIR I968Bom.314.
33. Ss. 7 and 8 of the Indian Succession Act 1925. See also Kedar Pandey v. Narain Bikram
5/wAIR1966SC160.
34. S.5.

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all its offices not to grant maternity benefits to unmarried women employees. The
occasion for issuing such instructions was an application made for maternity benefits by
an unmarried telephone operator at Gandhidham Exchange, Bhuj, in Gujarat. The lady
claimed that she was married in 1980 but the department alleged that she was not a
married woman but was only living with a man who was already married. Her parents
also made complaints that she was having illicit relations with one telephone operator.
Inquiries were made which revealed that she was "living with him". The authorities
treated this as a case of "moral turpitude" and denied her maternity benefits. The matter
was taken up by the Minister of State for Women's Welfare and the instructions were
withdrawn. In February, 1986 the Ministry of Labour issued instructions that maternity
benefits should be given to all employed women - married or unmarried. It says:"The
denial of maternity benefit to a woman employee/worker because she is unmarried ...
appears anti-woman, anti-human, and anti-worker and illegal. We therefore think that
instructions already issued not to grant maternity benefit to unmarried woman employees/
workers should be withdrawn immediately, and maternity benefits may, as in the law, be
granted, to a woman employee/worker without regard to her marital status."
Though this order is directly connected with women and their welfare, and not
with children as such but it indirectly does indicate a concern for the child as well who
needs special care and attention of the mother. All other mother-child connected beneficial
provisions - like nursing breaks - also make no distinction between children on the
basis of the marital status of their parents.

compensation and insurance

Under the Workmen's Compensation Act 1923 which provides for the payment by
certain classes of employers to their workmen, of compensation for injury or death by
accident a "dependent" includes "a minor illegitimate son, an unmarried illegitimate
daughter or a daughter legitimate or illegitimate if married and a minor or if widowed
and a minor".35 It is significant to note however that while a legitimate child is in every
case a "dependent" for purposes of getting the compensation, the right of an illegitimate
child is conditional on his/her being "wholly or in part dependent on the earnings of the
workman at the time of his death".36 Thus legitimate child whether or not he is dependent
on the deceased employer, is entitled to claim compensation whereas an illegitimate
child has to prove that he/she was dependent on the deceased.
The position is the same under the Employees State Insurance Act, 1948.37 An
illegitimate child, unlike the legitimate child cannot seek benefits as a dependent unless
he/she is wholly or partially dependent on the earnings of the deceased at the time of
his death. Also he has no place within the meaning of the term "family" as defined in
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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Social Stigma and Practical Problems

Apart from, or in fact more than, the legal recognition of the difference in status of
a child born within and outside wedlock, it is the societal rejection and practical problems
which add to the hardship of such children. These can be witnessed in several matters
like - birth registration, name, school admission, marriage and so on. Under article
7(1) of the 1989 Convention, "The child shall be registered immediately after birth and
shall have the right from birth to a name, the right to acquire a nationality and as far as
possible, the right to know and be cared for by his or her parents." However in the case
of children whose paternity is unknown or whose parents are either separated or not
married, difficult situations arise. Though there are laws providing for registration of
birth of every child,39 it is common knowledge that the affront to the dignity of the child
born outside marriage begins right from birth. The birth registration form contains a
column requiring father's name and if that is not supplied the form remains incomplete
and the applicant has to face harassment and embarrassment.
It is common knowledge that for all official transactions the authorities insist on
the father's name to be mentioned in the forms as also his signatures. This is not only
embarrassing at times but also unjustified and discriminatory. It has been observed that
even where there is a column for the guardian's name, there is another column requiring
the father's name as well. Thus even if the mother is the guardian, the form remains
incomplete without the father's name. In 1990 there was the case of children of sex
workers in red light area in Delhi who were denied admission in schools simply because
they could not fill up the father's name in the application form. The matter went up to
the Supreme Court which issued directions to the administration and school authorities
to delete the column requiring the father's name and to admit these children.
A mention may here be made of a private member's Bill introduced in the Lok Sabha
in 1990, known as the Mother's Lineage Bill 1990. The statement of objects read:
In order to make the man-woman equality a reality the human mind will have
to liberate itself from many obsolete concepts which are associated with the
possessive property con-scious, male-dominated society.
The concept of "illegitimacy" and the practice of tracing one's Lineage solely
from the father's side is one such reactionary and fossilised concept. The
reactionary attitudes, which form the unspelt basis of the present official and
non-official practices, and the decisions of the court will have to be discarded
completely if the egalitarian principles of the Constitution are to conform to
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 not directly address the
issue of children born of non-marital parents, by implication it could be attracted to
cases where the mother alone is the guardian and caretaker of the child.
A reference may here be made of a case41 from the United Kingdom where a child
born to unmarried parents was given the surname of the mother's former husband. The
mother as well as her two children from her former marriage were also known by that
surname. The father of the child applied under section 8 of the Children Act 1989 for
an order that the child be known by his surname. Though his application was granted by
the trial court, the same was reversed in appeal. The court held that though it had the
jurisdiction to make the order sought but in view of the circumstances, including the
fact that the name in which the child was registered was the mother's name at the time of
the registration and also that of her other children, there was nothing wrong in her choice
of the child's surname. "Only strong countervailing grounds would suffice to overturn
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 in
every manner, an illegitimate child is still exposed to enormous social, emotional and
legal deprivation and discrimination. While the parents can foresee the consequences of
their socially or legally disapproved alliance, the child has no choice in the matter. And
unfortunately he is the one worst affected. Even though there are provisions under some
personal laws providing for legitimation of children under certain circumstances the
same are not available to all marriages in breach of any provisions of the law; nor is
legitimation provided under all personal laws. Even where the provision exists, it does
not accord equal status to legitimated children alongwith legitimate children. In India
bigamous marriages are still rampant despite laws against it. Since penal consequences
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 which
provide for legitimation of children of bigamous marriage, since no marriage is established
the provision of legitimation is not available. As a result, these children are treated as
illegitimate with norightsexcept 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 children
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 abandon
the child. These children are either picked up by the police as neglected or abandoned
children and remanded to an Institution/Home or by social organisations or foundling
homes for being given away in adoption. Needless to say that the chances of abuse and
exploitation of such children are very high.

41. Dawson v. Wearmouth [19981 2 WLR 392 (CA).

42. Such as in case of sexual assault. In the Poona hysterectomy operations on mentally handicapped
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 authonties'for ordering the operation.

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An illegitimate child does not get the father's name. Perhaps there is a rational
distinction between a child born into a family and one born outside and since such child
would normally not be living with the father but with the mother, it might sound logical
that the child should be identifiable with the mother; and laws on guardianship and
adoption fall in line with this reasoning. However, from the child's perspective
discrimination and bias is evident. Achild who is known by the mother's name, specially
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 natural
child for all legal and social purposes. An adopted child in fact, may not be the biological
child of either of the parents whereas a non-marital child is the biological child of both
the parents and yet there is a distinction which is based only on the legal relationship
between its parents. It may be argued that if a child from outside marriage with no
genetic link with the parents can be brought into the family and conferred a status of full
legitimacy simply by a process recognised by law or custom, there is no reason why a
child who, in fact is the biological child should be differently treated. The justification
for this is perhaps founded on the factual situation of actual living in family relationship.
While an adopted child is by choice deliberately brought into the family to be a component
of the family and the law recognises this status, a child born of an adulterous relationship
could be an accident with the partners never having intended the same. However, there
is no justification to legally deprive the child of hisrightsqua his parents and socially
stigmatise him. Every child, whether born in or outside of wedlock is entitled to the
same social protection under the Universal Declaration ofHuman Rights 1948.43
The child's right to the company of his father should be viewed from his (child's)
perspective. Under article 9(3) of the UN Convention on the Rights of the Child 1989
"states parties shall respect the right of the child who is separated from one or both
parents to maintain personal relations and direct contact with both parents on a regular
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 duties
towards his illegitimate offspring and thus correspondingly, deprives the child of several
rights - including the right to his company. The primary guardian of an illegitimate
child is the mother as against the father in case of legitimate child. The objection is not
to the mother'srightbut to the different legislative provision depending on whether the
child is born in or outside wedlock. The sole factor, it is submitted, should be the best
interests of the child rather than the legal relationship of its parents.
Recognition of better status and more familial/parental obligations would help
reducing the incidence of illicit cohabitation for fear of incurring responsibilities for
children born outside wedlock. A reference may be made to two American cases44 which
are of great significance in the context of such children. In Zepeda the defendant
concealed the fact that he was a married man and induced the plaintiff's mother to have
sexual relations with him by promising to marry her. As a result of this union the plaintiff
was born illegitimate. He filed a suit for damages on the ground that the defendant

43. Art. 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 ILLEGITIMATE CHILDREN 309

damaged his person, property and reputation by causing him to be born a bastard. He
further alleged that he was deprived of the rights to have a normal home, to have a legal
father, to inherit from his father and from his other paternal ancestors and to be free from
the stigma of bastardy. The Circuit Court of Cook Country, Illinois dismissed the suit on
the ground that there was no cause of action. On appeal, it was held that the act of
conceiving a child who is subsequently born illegitimate is a tort against the child and as
such constitutes a cause of action. Damages, however, were not allowed. The court
held that this might encourage children to file suits against their parents based upon
their birth under any disadvantaged or adverse conditions e.g. birth in a poor family, or
in a particular race or in family with unsavoury reputation, and so on. Consequently, the
dismissal of the plaintiffs claim was affirmed on the ground that "...law making should
not be indulged in where the result could be as sweeping as here".45
In Williams a patient at a state mental hospital was forcibly raped by another patient
and a daughter was born. The mother and daughterfileda claim for recovery of damages
against the state for negligence in providing adequate protection to the woman, while
she was in the hospital. For the child's claim it was alleged that by reason of the negligence
she had been "deprived of property rights; deprived of a normal childhood and home
life; deprived of proper parental care, support and rearing; [and] caused to bear the
stigma of illegitimacy ...." The court of claims held that the illegitimate child was a
victim and she was not barred from recovering damages. However, in appeal the claim
was turned down, and it was held that an infant had no cause of action against a state for
negligently permitting the mother's rape and thereby causing plaintiff's illegitimacy.
Judge Keating in his concurring order observed:46 "The damages sought... involve a
determination as to whether non-existence or nonlife is preferable to life as an illegitimate
with all the hardship attendant thereon. It is impossible to make that choice."
One cannot ignore the fact that despite ameliorative measures, an illegitimate child
is in a very disadvantageous position whether it is in terms of emotional security or
property rights or social esteem. The problem has to be tackled on two fronts - firstly
by discouraging illegitimate birth and secondly by removing social prejudices and legal
inequalities. The fear of being saddled with the responsibilities of such children would
deter many adults from indulging in illicit sexual cohabitation.
Besides, the law of adoptions needs to be liberalised. It is common knowledge that
many children are languishing in orphanages and other institutions47 waiting to be picked
up by families who could provide them with the emotional, social and physical security
of a home. A vast number of these children are children born outside marriage who have
been abandoned by the mothers. The only law that provides for adoption is the Hindu
Adoptions and Maintenance Act 1956 which is applicable to Hindus alone. There is no
law permitting adoption amongst other communities and attempts to enact one met with
no success. A uniform adoption law giving a right to adopt to everybody will not only
bring happiness to the adopting parents but also provide children with a home, a name,
a status and all-round security.
45. Wat 859.
46. Williams supra note 44 at 485.
47. See, e.g. Rema Nagarajan, "6 babies, all dressed up, nowhere to go", Hindustan Times,,
(March 6, 1999).

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310 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol 40

The goal of attaining legal equality may not pose insurmountable hazards as we
have already started moving in that direction. More difficult is the social indignation
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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