Report No. 15
42. Argument in favour of second view.-
It is a more difficult question whether we should adopt the second or the third of the views set out above. In support of the second view, apart from the fact that it was adopted as law in section 21 of the Divorce Act, 1869, it may be urged that if the third view is to prevail it would mean that persons can with impunity defy a law based on grounds of public policy, and frustrate the purpose with which the legislature has enacted the prohibition. Sympathy is undoubtedly due to innocent children of prohibited marriages, but they are not without rights under the law.
They have a right to be maintained, and that is all that legitimate children are entitled to, during the lifetime of their parents. But to enlarge these rights, and place them on the same footing as legitimate children with right to inherit, would be to abrogate the distinction between marriage and concubinage. So long as society believes in marriage as an institution and prescribes conditions therefor, there must be a point at which breach of the regulations must render the marriage void and the children illegitimate. That is the argument in support of the second view.