Legitimacy To Child Born Outside Formal Marriage

They sought to know which law gives legitimacy to children born outside a formal marriage, be it void or voidable. They were looking into this while d

Legitimacy To Child Born Outside Formal Marriage

The issue of legitimacy for children born outside of formal marriage is a significant one in many legal systems, including India's. The Indian legal framework provides mechanisms to address the status of such children, primarily focusing on their rights and welfare. Two key pieces of legislation relevant to this discussion are the Hindu Marriage Act, 1955, and the broader Indian legal principles that apply to all citizens, regardless of their religion.

On 23rd February 2024, The Supreme Court Justice Justices BV Nagarathna and Augustine George Masih asked, "What law makes children born outside a formal marriage legitimate." She asked this question to Aishwarya Bhati, who represents the government, and to lawyers challenging the surrogacy rules. They sought to know which law gives legitimacy to children born outside a formal marriage, be it void or voidable. They were looking into this while dealing with several legal challenges related to the rules on surrogacy from 2022 and the Assisted Reproductive Technology Act from 2021.

Section 16 of the Hindu Marriage Act clarifies that even if a marriage is legally considered void, any children from that marriage will still be seen as legitimate, as if the marriage were valid. A marriage might be declared void for reasons like one of the partners already being married, the partners being too closely related, or one of the partners being underage.

Section 16 of the Hindu Marriage Act

Section 16 of the Hindu Marriage Act, 1955, deals with the legitimacy of children born out of void and voidable marriages. This section is significant because it ensures that children born from such unions are not penalized for the conditions of their birth, particularly concerning their rights and status within society. The provision underlines the principle that the welfare of children takes precedence, ensuring they are entitled to rights such as inheritance that they would have had if the marriage between their parents had been valid.

The text of Section 16, as amended, is as follows:

Legitimacy of Children of Void and Voidable Marriages:

"(1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been deemed to be legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act."

"(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, 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 child notwithstanding the decree of nullity."

"(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents, in any case, where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents."

This section thus protects the rights of children born out of marriages that are either void from the beginning or become voidable and are later annulled. It ensures that these children are treated as legitimate for all purposes, including inheritance from their parents, though it does place limitations on rights to property from others, highlighting the primary concern for the child's welfare and rights in relation to their parents.

Assisted Reproductive Technology Act, 2021

The Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), enacted by the Indian Parliament, is a landmark legislation aimed at regulating and supervising assisted reproductive technology (ART) services in the country. Prior to this Act, ART services, including in-vitro fertilization (IVF), surrogacy, and other fertility treatments, were largely unregulated in India, leading to ethical, legal, and health-related concerns. The Act seeks to address these issues by establishing a legal framework to ensure ethical practices, protect the rights of all parties involved, and ensure the safety and well-being of children born through ART. It ensures that children born through ART have the same rights as biological children of the intending parents.

Petitioner Aishwarya Bhati, Additional Solicitor General

Bhati said at present there are four ways in which children can be had — one can be a natural birth, through ART, where a woman can be assisted to have a child herself, then it is adoption, where you don’t give birth to the child and the last is surrogacy.

Bhati mentioned that the government will provide support to the court on this matter, although they haven't made any arguments about children being legitimate or illegitimate. She pointed out that according to a previous court decision, the distinction between legitimate and illegitimate children no longer exists. However, the government will help the court consider this issue further.

“This court’s judgement is there on legitimate or illegitimate children. There are no illegitimate children anymore. That whole concept is gone. But we will assist this court in taking a view on the issue,” she said.

Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021, in India establishes a regulatory framework for carrying out surrogacy procedures, prohibiting commercial surrogacy to protect surrogate mothers from exploitation, and allowing altruistic surrogacy under strict conditions. This comprehensive piece of legislation includes various sections and provisions to ensure ethical practices in surrogacy.

Supreme Court Judgment

The court decided not to close the cases of single, unmarried women who want to use surrogacy laws or who have challenged parts of these laws. It has asked Bhati to submit a written argument specifically about single, unmarried women.

Justice Nagarathna mentioned that some medical reports required by the surrogacy law for some petitioners are still pending. The court needs to review these reports before moving forward because, according to Rule 14, certain medical conditions must be met for someone to be eligible for surrogacy. This rule outlines specific medical situations, like not having a uterus or having a uterus that cannot carry a pregnancy, which would allow a woman to consider surrogacy.

The court also praised the government for positively responding to the issue and for amending the surrogacy rules through a recent notification. This amendment, made in February 2023, changes the surrogacy rules to permit married couples to use a donor's egg or sperm if one partner has a medical issue that requires it. This was a change from a previous notification in March 2023, which had banned the use of donor eggs or sperm for couples wanting to have a child through surrogacy.

Source:

• The Print
• The Indian Express