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Report No. 15

Clause 29

General.-The question of legitimacy of children of void and voidable marriages has been dealt with here. The existing provision, it is felt, is too narrow, because it is confined only to two grounds of nullity, namely:-

(i) where the former spouse was living, and

(ii) insanity.

The clause under discussion seeks to extend it to certain other cases also, as will appear from a discussion below.

As to the substance of the provision, see the discussion in the Report.1

Sub-clause (1).-The existing section deals only with the case where a spouse by a previous marriage was living. The draft makes the following changes:-

(i) The provision has been widened so as to extend to all cases irrespective of good faith and belief of the parties etc. Further, it has been extended to cases of marriages void by reason of prohibited degrees also.

(ii) The provision will apply to any child begotten "or conceived". The corresponding provision in the Hindu Marriage Act may be compared.

It may be noticed that the protection given by this clause will apply irrespective of whether a decree is passed or not. The other two Acts do not expressly deal with the case where a decree is not passed.

Sub-clause (2).-This deals with voidable marriages annulled by the court and follows, in substance, the language of the main paragraph of section 16 of the Hindu Marriage Act, with necessary modifications.

Section 21 of the Divorce Act requires the court to specify the names of the children in the decree. This has been omitted, as unnecessary.

Sub-clause (3).-The existing section confines the right of succession of the children "to the estate of the parent who at the time of the marriage was competent to contract". The sub-clause under discussion gives him the right to inherit to both the parents. The corresponding provision in the Hindu Marriage Act etc., has been followed.

As in the other two Acts, this will apply to voidable marriages also.

1. See the body of the Report, para. 36 et seq.

Report on the Law of Christian Marriage and Divorce Back

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