Report No. 69
The second aspect relates to legitimacy as one author puts it,1 legitimacy is a question of fact, and can be determined only by reference to three questions. First, who was the child's mother? Secondly, who was the child's father? Thirdly, were the father and mother validly married at the time of conception or at the time of birth? The first question is not often in issue. The second question, however, is material to the present discussion. The third question is also relevant. Although the question as to who is the father of a child is, in the last resort, one of fact, it was recognised very early that it would be intolerable to insist that the paternity of every child be proved affirmatively.
The law, therefore, established the rebuttable presumption that every child born to a married woman is also the child of the husband. The presumption operates not only-(i) in the situation where a child is both conceived and born during marriage, but also where the child has, (ii) been conceived outside marriage yet born within it, and (iii) been conceived during marriage but born after the marriage has been terminated by judicial decree or death.2
1. Bromley Family Law, 4th Edn., 1971, p. 228.
2. Knowles v. Knowles, 1962 Probate 161.
54.17. Concept of legitimacy under the section.-
It must be noted that legitimacy as a concept postulates two things, namely-(i) that the natural parents were married to each other and (ii) that they were lawfully married to each other. There is also the time element. When one describes a child as legitimate, one really asserts that the child was born of parents who were lawfully married to each other at the relevant time. The expression "relevant" is used in this discussion for convenience. This general concept is common to most legal systems, but differences between the legal systems may arise because of their differing attitudes as to what should, for this purpose, be regarded as the relevant time.
The Roman law, as already noted ,1 regarded, as legitimate, children whose parents married subsequently, so that the relevant time in the eye of that law was not confined to the moment of birth or conception. English common law treated the moment of birth as the relevant time. Hindu law-if the exposition of that law to be made later in this discussion is accurate-took the moment of the conception as the relevant time. The significance of section 112 lies in this, that it selects, as the relevant time, what was adopted by English common law. This aspect of the matter is not explicitly mentioned in the section. But it indirectly follows from the provisions of the section in so far as they enact that the son shall be presumed to be the legitimate son of the persons concerned.
1. See supra.
54.18. Criterion of legitimacy.-
In relation to legitimacy, then, the criterion adopted by the section is the married status at the time of birth. The alternative test of married status, at the time of conception (a test which seems to have been in vogue under Hindu law)1 is not adopted in the section. In this respect, the section follows the English common law, which, in its turn, followed, pro tanto, the Roman law.2 A brief comparative discussion therefore follows.
1. See discussion as to Hindu Law, infra.
2. See discussion as to Common Law, infra.
IV. Common Law
54.19. Common law and Roman law.-
The rule enacted in the section is the rule of the common law, in so far as the criterion of legitimacy adopted is the moment of birth. The common law does not require that a child, in order to be legitimate, should be conceived during the marriage. It is sufficient if its parents have been married before its birth. This rule might have been derived from the Roman law, under which also the child was legitimate even if the conception occurred before marriage. In fact, the Roman law even permitted legitimation by subsequent marriage-a rule which the common law did not adopt. To provide for it, a statute was required in England.1 Further, according to the common law, birth during lawful wedlock raised a presumption of legitimacy which could be rebutted only by certain types of evidence.
1. Legitimacy Act, 1926, was the first such general statute.
54.19A. Presumption originally strong in England.-
The history of the strength of this presumption is interesting. At one time, in England, the presumption of legitimacy was so strong as to be irrebuttable unless it could be proved that it was impossible for the husband to be the father because he had "dwelt beyond the four seas"-ex quattor maria-during the whole period of his wife's pregnancy, or was impotent. Thus, it was stated1 that "the legitimacy of a child born shortly after marriage, whether first or subsequent, was in fact, as impregnable as if it had been also conceived in wedlock, though it was admittedly not begotten by the husband: and ante-marital incontinence with another was not a ground for bastardizing-Redwell's case, 18 Edw 1: Rolle 356: I.H. 63: Fitzh Bast. Pl. 1: Abr. Bast (F) Coke Litt. 244a."
1. Hooper Law of Illegitimacy, (1911), p. 12.
54.20. But the doctrine of ex quattor maria (beyond the four seas) had become obsolete by 17321, and the presumption became rebuttable in the case of a child conceived and born during the marriage, where the evidence establishes that no sexual intercourse took place between the spouses at any time when the child could have been conceived .2
According to early English cases, the presumption of legitimacy continues despite adultery3-4 of the mother.
1. Pendrell v Pendrell, (1732) S 2 Str 925: 93 ER 945.
2. Mons v. Davies, (1837) 5 Cl&F 163 (242, 244): 7 ER 365: 47 RR 50.
3. Cope v. Cope, (1833) 5 Car&P 604: 172 ER 119.
4. Wright v. Holdgate, (1850) 3 Car&K 158: 175 ER 503.
54.21. Operation of the presumption.-
The operation of the presumption remains unaffected by the fact that conception occurred before the relevant marriage was celebrated,1 or birth took place after it was terminated.2 In the latter case, the presumption is obviously easier to rebut than in other cases: but it is not rebutted simply by proof of remarriage before the child is born. In course of time, the strength of the presumption was diluted. Judicial decisions in England seem to have allowed rebuttal of the presumption not only by evidence of non-access, but also by certain other evidence though the rebuttal evidence was expected to be of high probative force.3 We shall refer later to this aspect of the Common law rule,4 as also to an important statutory development relevant to the subject.5
1. Cocks v. Juncken, (1947) 74 CLR 277.
2. Overbury, Sheppard (in re:) v. Matthews, 1955 Ch 122: (1954) 2 All TR 308.
3. Francis v. Francis, (1959) 3 All ER 206.
4. See discussion as to rebuttal, infra.
5. Section 26, Family Law Reform Act, 1969, infra, (p. 1627).