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Report No. 69

V. Roman Law and Civil Law

54.22. In this respect, Roman law, as already noted,1 was still wider than English law. By the Roman law,2 and by the laws of France3 and Scotland which, on this subject, are based upon that law, the marriage of the parents at any time renders legitimate all their children, whether born before or after such marriage. Potheir, for example4 wrote of the Constitution of Constantine (to which he pointed as the origin of legitimation by subsequent marriage) as having provided that not only should the marriage give the woman the title and the rights of a lawful wife "but should give equality to the children whom he should have had of that woman while she was no more than a concubine the title and all the rights of lawful children".

1. See supra.

2. Institutes of Justinian, Lib. I, Tit., X. 13, and note by Sandars, Mackenzie's Roman Law, pp. 130-134: all referred to by Bennerji Marriage and Stridhana, (1923), p. 176.

3. Code Napoleon, Articles 331-333, Bannerji Marriage and Stridhana, (1923), p. 176

4. Pothier, Part V, C. 2, Art 2, section 1 cited in A.G. Victoria v. Commonwealth of Australia, (1962-63) 36 ALJR 104 (131).

54.23. The general idea of legitimation, originated in later Roman law after the Empire had become Christian.1 Several methods of legitimation were then recognised by law. The effect of each was to bring the legitimated offspring within patria potestas, thus bringing them into the family, making them fills familias as if they had been born ex justis nuptiis. They could succeed to their father's property, but this, it seems, was always a secondary consideration to bringing them into patria potestats.2 Because legitimation involved subjection to patria potestas an illegitimate child could not be legitimated against his will.

It was Constantine who, early in the fourth century, first provided for legitimation by subsequent marriage. Originally, this was confined to the offspring of concubinage, and did not extend to bastards generally. Concubinage was a Semi-matrimonium, recognised by social custom and not regarded with censure. It was monogamous relationship. A man might not have a wife and a concubine or two concubines. The position of the concubine was below that of a matron, but it was not dishonourable. She shared her husband's bed and board, but did not enjoy his honours. Pothier was later to speak, somewhat inaccurately perhaps, of the morganatic marriages of Germanic custom as a survival of the Roman practice of concubinage.

Constantine's law was re-enacted by Zeno, and extended by others. Justinian gave it a general application. It was no longer confined to marriages with concubines. The Church took over this doctrine. And, by the combined effect of canon law and civil law, it has continued, in slightly differing forms, to have a place in most continental systems of law. Any child born out of wedlock is made legitimate by his parents marrying, provided that no impediment existed to their marriage when the child was conceived or born. Which was the critical time is a question on which jurists differed.

1. A.G. Victoria v. Commonwealth, (1962-63) 36 ALJR 104 (126).

2. See Professor Jolowicz Roman Foundations of Modern Law, p. 197.

54.24. California Civil Code.-

We find in the California Civil Code1 a provision for the legitimation by the marriage of parents, in these terms:

"25. A child born before wedlock becomes legitimate by the subsequent marriage of its parents."

1. Section 215, California Civil Code, cited in Goldstein and Katz The Family and the Law, (1965), p. 840.

VI. Hindu Law

54.25. If Roman law stands at one extreme, Hindu law (as given in the texts) stood at the other extreme. Although1 the Privy Council took a different view on the subject, it would appear that the Hindu Law of Legitimacy was more strict than even the English law.2 For example, Manu defines3 the aurasa son (son of the body) thus:

"Him whom a man has begotten on his own wedded wife, let him know to be the first in rank, as the son of his body."

To the same effect are the texts of Vasistha, Devala, Baudhayana, Apastamba and Yajnavalkya4.

1. Pedda Ammani, (1874) LR 1 Ind App 293 (PC).

2. Bannerji Marriage & Stridhana, (1920) p. 177.

3. Manu IX, 166.

4. Celebrooke's Digest, Bk. v, 193, 195, 196, 199 and 200, referred to by Bannerji Marriage and Stridhana, (1923), p. 177.

54.26. According to the Hindu sages, therefore, in order to constitute legitimacy, there must be not only birth but also procreation in lawful wedlock; and some of the leading commentators, such as Kulluka, Vijnaneswara, and Nilkantha1, confirm this view of the texts of the sages2.

1. Mitakshara, Ch. 1, sec. XI, 2; Vyavahara Mayukha, Ch. IV, section IV 41.

2. Bannerji Marriage and Stridhana, (1923), p. 177.

54.27. But the Privy Council took a different view. Sir Barnes Peacock, in delivering judgment in the case of Pedda Amani v. Zemindar of Marungapuri, (1874) LR 1 IA 293 (PC), observed:

"The point of illegitimacy being established by proof that the procreation was before marriage, had never suggested itself to the learned counsel for the appellant at the time of the trial, nor does it appear from the authorities cited to have been distinctly laid down that, according to Hindu law, in order to render a child legitimate, the procreation as well as the birth must take place after marriage. That would be a most inconvenient doctrine. If it is the law that law must be administered. Their Lordships, however, do not think that it is the Hindu law. They are of opinion that the Hindu law is the same in that respect as the English law".1

1. Emphasis supplied.

54.28. Discussions at the Bill stage.-

It should be noted that in the comments received on the draft Evidence Bill, it was stated by one of the Government Pleaders1 that it would be more in consonance with the notions of Hindus and Muslims if an artificial rule linking up the legitimacy with the date of Birth were not introduced. He pointed out that a full grown child born five months after its mother's marriage with a Hindu or a Muhammadan will never be considered a legitimate issue of the marriage.

"Natives look to the date of conception, and not to the date of birth in question like this."

However, the framers of the Bill seem to have preferred the English rule, either because it would avoid minute inquiries as to possible date of conception in border line cases, or because of their view that as a matter of social policy it is enough if the married status and the birth coincide.

1. Comment of a Government Pleader in the Bengal Presidenc.- Babu Opendro Nauth Mitter, Government Pleader, Dacca, Printed File of the Evidence Bill, p. 118, under clause 102. (National Archives) Legislative Department Proceedings

VII. Points for Amendment-Void and Voidable Marriages

54.29. Recommendation to expression "valid".-

So far we have discussed matters relevant to broad principles. While there is no need to disturb the broad principle underlying the section, we would like to consider a few points on which an amendment is needed in the section.

54.30. Recommendation as to void marriage in certain cases.-

In the first, place the section does not apply unless there is a valid marriage. A marriage which is void would be outside the section-though a voidable marriage may perhaps be covered. We are of the view that the section should apply to void marriages, in those cases where a statutory provision applicable to the marriage in question1 declares that notwithstanding that the marriage is void, the children shall be legitimate. We, therefore, recommend that the earlier half of the section referring to the continuance of a valid marriage should be amended for the purpose.

Section 16 of the Hindu Marriage Act-to take one example-provides that any child begotten or conceived before the decree of nullity, who would have been the legitimate child of the parties to the marriage, if the marriage had been dissolved instead of having been annulled, shall be deemed to be the legitimate child of the marriage notwithstanding the decree of nullity. (To the same effect is section 26 of the Special Marriage Act, 1954).

1. E.g., section 16, Hindu Marriage Act, 1955.

54.31. In the Indian Divorce Act, 1869, a somewhat similar provision is in section 21 which is limited to a marriage annulled on the ground that a former husband or wife was living, and operates only where the consequent marriage was contracted in good faith, or where marriage is annulled on the ground of insanity. The section is confined to children begotten before the decree. The legislative policy underlying these provisions should be reflected in section 112.

54.32. Birth after annulment of void marriage or avoidance of voidable marriage-Recommendation.-

This point concerns the earlier half of section 112. In the latter half of the section also, the case of annulment of a void marriage or of avoidance of a voidable marriage should be covered. A marriage can be annulled by a decree of nullity under section 12 of the Hindu Marriage Act, 1955 and section 25 of the. special Marriage Act, 1954-to take only two examples. For instance, a Hindu girl is married to A, and gets the marriage annulled under section 12 of the Hindu Marriage Act, 1955 (on the ground that her consent was obtained by fraud), on the 1st April, 1962, and the girl is delivered of a child-say, on the 1st September, 1962.

Section would not apply, because the child has not been born "during marriage", and the case of a birth after annulment is not covered by the section in express words. Of course, the fact can be proved by evidence, but we do not see any reason why such a case should be treated differently from dissolution, at least where a statutory provision of nature contained in the Hindu Marriage Act applies.

54.33. Doubt as to nullity.-

We may add that it is not clear whether the assimilation of a decree of nullity to the dissolution of the marriage, which is provided for by section 16, Hindu Marriage Act or corresponding provisions in other Acts, would attract section 112 of the Evidence Act. This doubt arises because the rule in section 112, though, in substance, one of substantive law, is, in form, one of evidence, vide the words "conclusive proof". Moreover, under section 16, Hindu Marriage Act, conception before the decree has first to be proved, before the deeming provision in the section regarding legitimacy can be drawn upon. On this interpretation, section 16, Hindu Marriage Act, would not operate unless such conception is first proved. This position is different from that flowing from the Evidence Act, under which the date of conception need not be proved, and proof of the date of birth is sufficient to lead to legitimacy.

54.34. Need for change.-

It seems, therefore, desirable to extend the scope of the section to cases of annulment of a void marriage or the avoidance of a voidable marriage. These events should, for the purpose of the section, be treated on the same footing as the dissolution of a marriage. The legislative policy reflected in section 16 of the Hindu Marriage Act, 1955, and similar statutory provisions should be reflected in the latter half. We recommend that section 112 should be suitably amended for the purpose.

54.35. Decree of nullity a judgment in rem.-

We should state that a decree of nullity "ascertains and determines the status of the party once for all"1 The judgment in a nullity case decrees either a status of marriage or a status of celibacy. There are, to quote Lord Phillimore,2 "two classes of decisions affecting the matrimonial status; those which decide that a marriage is or is not valid-judgments of declarator or of nullity and those which put an end to an unquestioned marriage-judgments of dissolution of marriage or, in popular language, divorce."

1. A. v B., 1868 LR 1 P&M 559, quoted by Lord Sands in Salvessen's case in the Scottish Court of Sessions; see note Annulling Marriages, (1937) 83 LJ 341.

2. A. v. B., 1868 LR 1 P&M 559, quoted by Lord Sands in Salvessen's case in the Scottish Court of Sessions; see note Annulling Marriages, (1937) 83 LJ 341.

54.36. Muslim law.-

We may state here that our recommendation as to void and voidable marriages will not apply where the law of marriage is not codified. In a Kerala case,1 under section 488 of the Code of Criminal Procedure, 1898,2 a Muslim married Woman was driven out by the husband within a few days after marriage, on the ground of her concealed pregnancy. (The allegation of concealed pregnancy was later proved). A child was born of the woman within about four months after her being driven out. It was held that no presumption under section 112, Evidence Act, could be raised on the facts of the case, the marriage being void. A petition filed by the woman against the putative father for maintenance of the child was therefore held to be maintainable.

It was held that concealment of pregnancy at the time of marriage render the marriage void in Muslim law, according to the authorities. In such a case there is no valid marriage, so as to attract the presumption under section 112, Evidence Act. Consequently, a petition under section 488 of the Code of Criminal Procedure, 1898 could be filed by her for the maintenance of the child, against the putative father of the child and the corroborated evidence of the woman that the child was of the non-applicant could be accepted, and the revisional Court will now interfere with it, though it may be that if the matter had come before the revisional Court it would have come to another decision on the facts.

1. Abdul Rahimankutty v. Aysha Beebi, AIR 1960 Ker 101 (102), para. 4.7 (T.K. Joseph, J.).

2. Now section 125, Code Criminal Procedure, 1973.

54.37. Decisions of English Courts as to nullity.-

This decision concerns Muslims who are governed by uncodified rules of law, and in respect of whom the personal law regards the marriage as void. Our recommendation, on the other hand, deals with cases where there is a statutory provision for the legitimacy of the children of a void or voidable marriage. Incidentally, it may be proper to comment that in the above case relating to Muslims, the court had perhaps in mind decisions of the English Courts, which held that a decree of nullity is not necessary but is merely a matter of convenience1 to the party. But it must be remembered that those decisions related to marriages which were null and void, so that the party did not acquire a new status from the ceremony-for example, because the consent of a parent for marriage had not been obtained. Moreover, those decisions were rendered at a time when there was no statutory provision for the legitimacy of the children of such marriage.

1. Hayes v. Watts, (1819) 3 Phill 43. 2 Cross on Evidence, (1974), p. 46.

Indian Evidence Act, 1872 Back

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