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Report No. 59

2.38. Section 2 Legitimacy Act, 1959.-

We may repeat that we are aware that the (English) Legitimacy Act, 1959-section 2-contains some such limitation as is suggested in the proposal sent to us. But we do not consider it to be a rational one. The English section was referred to in a Madras judgment1 pertaining to section 16 of the Hindu Marriage Act, but we do not think that the Madras High Court wished to suggest that every ingredient of the section should be incorporated into our law. And, on principle, we think that such an approach is not well founded. The fact that the scope of the section is being expanded in one respect-by removing the present requirement that there must have been a decree of nullity-also does not seem necessarily to require that the section should be narrowed down by adding a requirement that the parties must have believed that there was no impediment to marriage.

1. Gowri Ammal v. Thulasi Ammal, AIR 1962 Mad 510 (Ramakrishnan J.).

2.39. An argument may be advanced that what is stated above takes away the utility of the prohibitions against marriage. The answer to this argument is, first, that these prohibitions ought not to operate upon the children, and, secondly, that the prohibitions still retain some significance as the parties are not husband and wife in law, and cannot sue each other for any relief based on a valid marriage (e.g. maintenance or restriction etc.). We should say, with Shakespeare:1

"Why bastard, wherefore base? When my dimensions are as well compact, My mind as generous, and my shape as true. As honest madam's issue? Why brand they us with bases with baseness? bastardy? base, base?"

1. King Lear.

2.40. It is of interest to note that in the U.S.A., the North Dakota Supreme Court, in declaring the state inheritance statute unconstitutional, stated that "a statute which punished innocent children for the transgressions of their parents has no place in our system of government which has as one of its basic tenets equal protection for ally"1.

1. Estate of Jensen (in re:), (1968) 162 NW 2d 861 (North Dakota).

2.40. The fourth view1, of course raises larger issues and it is not necessary to discuss its merits or demerits at least in the present social context.

1. Para. 2.36, supra.

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

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