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  • Child Rights Centre, CNLU

Il(legitimacy) in India

By Aagam Jain, a 3rd Year, B.A., LL.B. (Hons.) student at National Law School of India University



Various personal laws establish the inheritance rights of a child in India. Despite there being a systematic exclusion of an illegitimate child’s right of inheritance, the personal laws provide almost no right of inheritance to an illegitimate child. In this article, I would argue that the laws governing the validation of rights of an illegitimate child are archaic and need to take a more liberal approach. The first part of the article discusses how the legitimacy of a child is determined by the law and the fallacies in the presumption of legitimacy provided under Sec. 112 of the Indian Evidence Act, 1872. The article also analyses the various personal laws of inheritance and the court’s reasoning in various cases to analyse the rights of inheritance of an illegitimate child.

Illegitimacy Defined

Different personal laws have a different conception of an 'illegitimate child. In traditional Hindu law, ‘Aurasa’ has been defined in the Shastras as a child who is conceived as well as born during wedlock.[1] This conception of legitimacy warranted that the parents conceive a child only after marriage. However, the privy council in Pedda Amani v. Zamindar of Marungapuri[2] held that if a child is conceived during wedlock but born during a valid marriage, the child would be legitimate. This position of law continues to hold good.[3] Muslim law lays down a gestation period of 6 months to determine the legitimacy of a child.[4] If the child is born after 6 months of the marriage of the couple, the child is presumed to be legitimate.

Sec. 112 of the Indian Evidence Act, 1872 presumes that a child is legitimate if the child is born during the continuance of a valid marriage or if the child is born within 280 days after the dissolution of marriage, provided the mother remain unmarried.[5] Since this law is secular, it applies to all personal laws and supersedes them. However, this is 1872 legislation that could be argued to be archaic in its approach.[6] The principal reason for the presumption of legitimacy in 1872 was because there was no means of ascertaining paternity.[7] However, various methods of ascertaining paternity have been discovered since then. The law must not make an adverse presumption that may function against the rights of the child. The words used in the section 'conclusive proof' ascribe a higher standard of proof than a mere balance of probabilities.[8]

Modern techniques such as surrogacy or in-vitro fertilization might yield absurd results in cases of sec. 112.[9] For instance, if A is a surrogate for B’s child, the child would be the legitimate son of A’s husband who is nowhere involved. Another fallacy in this section is the requirement of non-access to dispute the legitimacy of a child. In case the child is born out of adultery, the husband of the mother might not be able to dispute the legitimacy of the child because there is no issue of non-access.[10] This would result in an increased burden for the husband of the mother while the biological parent of the child would not be held responsible for the child. Although this presumption would discourage the branding of a child as a ‘bastard’, the biological father would not be held responsible at all.[11]

The law commission of India in its 185th report had taken cognizance of this issue and provided a revised section to allow for DNA testing in certain cases.[12] The revised section as mentioned in the law commission report takes into consideration the need to conduct medical tests to establish legitimacy. The proposed section emphasizes that the consent of a woman is necessary to conduct a paternity test. This clause is important to maintain the right of the dignity of a woman.[13] The section also adds a clause that establishes adverse inference in case a man refuses to undergo paternity tests.[14] This presumption would be beneficial to protect the rights of a child in case a man refuses to take responsibility and oppose medical tests determining paternity. The lacunae in sec. 112 make it inequitable legislation in the current time.

Inheritance rights of an Illegitimate Child