Legitimacy Under Private International Law

CONFLICT
Of
LAWS
CONCEPT OF LEGITIMACY
As per Leon R. Yankwich’s view, children are not illegitimate but the
parents are illegitimate. This quote says it all.
Children become illegitimate because of the unlawful relationship of
their parents. Yet both the society and the laws of
legitimacy/legitimation in most parts of the world have discriminated
against the illegitimate child and the rules for legitimation have been
very strict. The illegitimate child never had the same privileges under
the law as a legitimate child. Even under the personal laws, the right
to inheritance of the illegitimate children and the legitimate children
are not similar. But society has some people who are not only rational
but also liberal in their outlook and do not attach any stigma to a
child born out of wedlock. With their liberal outlook, the law on the
matter has also undergone amendments to accommodate the
illegitimate child’s rights.
Legitimacy in layman’s language means the status acquired by a
person who is born to parents who are married to one another at the
time of the birth. Legitimation means that a person who has not been
born to married parents acquires the status of legitimacy as a result
of some act.
The conflict of Laws relating to illegitimacy can be understood by the
following example.
Let’s assume that an illegitimate child is born to an unmarried couple
in a State X where they are domiciled. So, the parents move to State
Y where they follow some procedure for legitimating the child
according to the law of the jurisdiction of State Y. After that, the
parents move to the forum and unfortunately, the father of the child
dies, leaving the child with some property in the forum. The child
claims a right of inheritance through his father by proving that he
has legitimacy according to the law of State Y and asks the court to
take into consideration his foreign created status of legitimacy and
he is given full effect in the forum.
The ‘Conflict of Laws’ obviously arises in this case as the legitimacy
grating statute of the place X, Place Y and the forum is different. So
here, the act of the birth itself is the only action necessary to make a
child legitimate in relation to his natural parents.
NEED OF PRIVATE INTERNATIONAL LAW/ CONFLICT OF LAWS
The need of Private International Law arises because different

countries have their own set of internal laws which are in conflict
with each other. Differences also exist between the Private
International Laws of different countries which results in conflicting
decisions given by the courts of different countries on the same
matter.
The solution to this problem lies in the unification of the private
international laws of the different countries and need for rules for
conflict laws which the courts apply to resolve the problem. Having
said that, the rules/principles of private international may be as
follows:
• It forms a branch of national law of that country.
• The individuals, whether citizens or not, are governed by it.
• It always has a foreign element of law in these cases.
Rules of conflict of laws are basically for the need to do justice. For
example, it would be unjust if a dispute over a case involving a
German element of law (one of the parties to the case has a reason
for applicability of foreign law element) is decided by an Indian court
applying the rules of law enforceable in India just because it is an
Indian court which is deciding the matter. The basis for applying the
rules of conflict of laws is the Doctrine of Comity, meaning the
accepted rules of mutual conduct between states.
JURISDICTION OF LAW
‘Conflict of laws’ denotes the difference in the laws which arise out of
two or more jurisdictions when applicable to a dispute/conflict at
hand. The dispute/conflict can be between the federal and state laws
or laws of two states or even between laws of different countries.
CHOICE OF LAW
In case of a conflict, the court has 2 choices for deciding which law
will apply:
• Law of the forum (Lex fori): Lex fori is the choice mostly
when the conflict in laws relates to a procedural matter.
• Law of the place (Lex loci): On the other hand, courts mostly
go by Lex loci or the law of the place when the conflict in laws
pertains to a substantive matter, meaning the place where
the cause of action arose.
CONCEPT OF LEGITIMATION
Legitimation means that a person who has not been born in lawful
wedlock acquires the status of a legitimate person as the result of
some act, such as the sub¬ sequent marriage of his parents, that
occurs after the date of his birth. In other words, Legitimation is a
process by which an illegitimate child is given legitimacy. The concept
of legitimation is, however, not recognized in India neither in Muslim
law nor in Hindu law but it is recognized by Portuguese law in Goa
and the Legitimacy Act of 1926 in England etc.
RECOGNITION OF FOREIGN LEGITIMATIONS

ENGLISH LAW
Countries across the world have more lenient laws now when it
comes to legitimacy and also have processes in place where
legitimacy can be granted to an illegitimate child, even if parents are
unmarried or the parents marry subsequent to the birth of the child.
With so many different laws of different jurisdictions coming into play
in the matter, there is bound to be the question of applicability of
which law. This is where ‘Conflict of laws’ comes into the picture and
helps decide which system of law and method of legitimation is more
effective.
The law in England is that unless the father is domiciled both at the
time of the child’s birth and also at the time of the subsequent
marriage in a country whose law allows this method of legitimation
by subsequent marriage, it is not recognised by the courts in
England. In other words, Section 2 and Section 3 of
the Legitimacy Act, 1976 provides that this legitimation is effective
from the date of the marriage provided the other conditions are met.
What this in effect means is that time of the childbirth is not so
important (Sine qua non) but the father’s domicile status at the time
of the marriage is the single deciding factor.
A long fight and campaign for the rights of the unmarried mother and
her child resulted in the Legitimacy Act, 1926 to come into force in
Britain. The legitimacy was awarded to the child on the subsequent
marriage of the parents only if they had not married someone else in
the meantime meaning that the relationship was not adulterous. The
Act was further amended and called the Legitimacy Act,
1959 which additionally extended legitimacy to children from
parents who were not free to marry each other at the time of the birth
of the child ending discrimination against children born from an
adulterous relationship. The present Act in force regarding the matter
is the Legitimacy Act, 1976.
INDIAN LAW
In the Indian Legislature, which recognizes the rule of comity is found
in Section 11 of the Foreign Marriage Act, 1969. These rules must
raise the following issues:
• Whether the court deciding the matter has the jurisdiction to
do so?
• If there is a foreign element of the law, then is it enforceable?
• Which system of laws should be chosen?
• What is the course of action when a court is faced with such
a dilemma and serves justice at any cost?
The legitimacy of a Child under Muslim Law in India

Under Muslim law in India, the basis of legitimacy is the paternity of
a child and that depends upon the marriage, that is, the legitimacy
of a child is recognized only by direct or indirect proof of the existence
of marriage between the father and the mother of the child. When
there is no direct proof of the existence of marriage which is lawful it
can be established by the following:
• Acknowledgement by a man that a woman is his wife;
• When a man acknowledges that he is the father of the child;
• When a man and woman cohabit for a long period of time.
The object of a Muslim marriage is to legalise intercourse resulting in
children. It was observed in the case of Habibur Rahman v. Altaf
Ali, that legitimacy is recognised of a son if he is born of a man and
his wife and otherwise the offspring is considered from an illicit
relationship. The term wife essentially signifies through marriage but
maybe without any ceremonies having taken place and an indirect
proof will also suffice in the absence of direct proof.
It is to be noted that recognition here means a pronouncement
establishing paternity. Here, the marriage exists but the child’s
paternity is questionable as the alleged marriage can’t be proven by
a direct proof as in Muslim law. Therefore, an acknowledgement
cannot legitimatize a child who is proven illegitimate.
The legitimacy of a child under Hindu law in India

Rules for the validity of the marriage under Hindu law is laid out in
Sections 5 and 7 of the Hindu Marriage Act, 1956 and if
unfulfilled, then, a child born out of such a marriage is considered
illegitimate. Section 11 of the Act states that a marriage is void if it
is bigamous, if the marriage has taken place between the sapindas
or when the marriage takes place between persons falling in the
prohibited degree. Section 12 of the Act gives provision for reasons
for voidable marriage.
Thus, in the case of void/voidable marriage, if a child is born or
conceived before the decree of annulment has been passed then such
a child will be legitimate. But, if the decree of annulment has been
passed and the child is conceived after that, then, the child would be
considered illegitimate under Section 16 of the Act. Under Hindu
law, a child born out of a lawful marriage has all the rights be it in
guardianship, maintenance, property, and inheritance. The same
rights and privileges are not accorded to an illegitimate child.
In the case of Revanasiddappa v. Mallikarjun, the Supreme Court
maintained that the constitutional values protected in the Preamble
of the Indian Constitution concentrate on the concept of equality of
status and dignity of an individual. The Apex Court added that the
Court should remember that a relationship between the parents may
not be lawful but a child born out of such a relationship has to be
viewed in isolation of the relationship of the parents.

Legitimacy Under Private International Law

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CONFLICT

NEED OF PRIVATE INTERNATIONAL LAW/ CONFLICT OF LAWS

The need of Private International Law arises because different

RECOGNITION OF FOREIGN LEGITIMATIONS

The legitimacy of a Child under Muslim Law in India

The legitimacy of a child under Hindu law in India

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