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Report No. 59

2.36. Condition of bona fide belief-Second point Considered-Four views as to legitimacy.-

The second point1, however, is one of great difficulty. With reference to the status of children born of a void marriage, theoretically, four principal views are possible:-

(i) One view is that such children must be regarded as illegitimate, because a void marriage has, in law, no existence, and the children of such a marriage can only be regarded as filius nullius;

(ii) The second view is that they should be entitled to succeed to their parents, as if they were legitimate, provided that the parents had contracted the marriage bona fide and without knowledge of any impediment;

(iii) According to the third view, they should, in all cases, be entitled to succeed to their parents as if they were legitimate.

(iv) There could be a fourth view, namely, that they must be entitled to succeed to other relations in all cases.

1. Para. 2.33, supra.

2.37. The first view1 is the traditional common law view, but has now been modified in most countries. According to this view, the prohibition of certain marriages being based on grounds of public policy, it is unavoidable that in a conflict between the interests of the general public and the interest of the innocent offspring of prohibited marriages, the former must prevail. While the first view is at the one extreme, the other extreme is represented by the fourth view, according to which the rights of children of void marriages to succeed to the property are recognised as if they are legitimate.

As regards the second view, it is a compromise between the first and the third. When the parties to the marriage deliberately break the law, the second view gives effect to the public policy referred to above. But, if the parties are not aware of the true facts constituting the impediment to a valid marriage, the demands of public policy, according to the second view, are sufficiently met by declaring the marriage to be void, without visiting the consequences of the mistake of the parents on the children. In England, the Legitimacy Act, 1959, gave effect to the second view2. This was already the position under the law of Scotland.

Before the Reformation, the Canon law also held that child of a void marriage was legitimate where the defect rendering the marriage void was unknown to one of the parties3. The Hindu Marriage Act, however, has already adopted the third view it would be a retrograde step if it now reverts to the second view. That apart, the third view is obviously more fair to the innocent offspring of the marriage, and more in harmony with modern social notions. We are, therefore, of the opinion that there is no justification for reverting to the second view.

1. Para. 2.36, supra.

2. Section 2, Legitimacy Act, 1959.

3. Report of the Royal Commission on Marriage and Divorce (1955), Cmd. 9678, pp. 305 and 306, paras. 1184 to 1186.

Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Back

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