Report No. 59
2.34. Legal proceedings ought not to be necessary.-
We are in favour of the first proposal2. In our view, it should not be a condition precedent to the applicability of the beneficial provision in the section that there must have been actual legal proceedings resulting in a decree. Certain serious anomalies have resulted from the present position. It may be noted that section 16 is an adaptation of section 9 of the (English) Matrimonial Causes Act, 1950. In making the adaptation, however, it seems to have been overlooked that the English section was concerned solely with decrees of nullity passed with respect to voidable marriages, and had nothing to do with void marriages.
As a matter of fact, at the date of the Matrimonial Causes Act, 1950, children of void marriages were, in England, not yet regarded as legitimate issue in any circumstances3. So far as voidable marriages are concerned, the children of such marriages should be treated as legitimate issues so long as the marriage is not avoided. But there was a doubt in this regard at common law. Hence the need for making them legitimate (notwithstanding a decree of nullity) by an express provision in the English Statute.
1. Para. 2.33, supra.
2. See, now section 2, Legitimacy Act, 1959.
2.35. In England, section 11, Matrimonial Causes Act, 1965, used to govern the legitimacy of children of voidable marriages after 1965. It was as follows:-
"11. Where a decree of nullity is granted in respect of a voidable marriage any child who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled shall be deemed to be their legitimate child1". Legitimacy of children of void marriage is governed by another provision2. Legitimation of children, by the subsequent marriage of their parents, is governed by a separate law3.
1. For present law see section 16, Matrimonial Causes Act, 1973.
2. Legitimacy Act, 1959, section 2.
3. See the Legitimacy Act, 1926, section 1, as amended by the Legitimacy Act, 1959, section 1.