Legitimacy

A child is, or is presumed to be, legitimate if it is born anywhere in the world in ‘lawful
wedlock’. Illegitimacy is a state which not only imposes a social stigma, but deprives a person of
rights of succession to the estate of his/her father.

Position in England

The system and the attitude of denying an illegitimate child the right to inherit his father’s
property has now markedly changed in England. Courts can, under the law, declare a person to
be legitimate if the applicant is, when he commences the proceedings, domiciled in England, or
was, for throughout a period of one year before the commencement of the proceedings,
habitually resident in England.

A child conceived before marriage is regarded as legitimate if born after the parents were
married, and so also a child conceived before but born after the parents were divorced.

Child born after artificial insemination is legitimate even if the donor is not the husband; unless
it is proved that the husband did not consent to the insemination. This rule only applies where the
parties to the marriage are Man and Women and, this rule does not apply where the women
marries to a transsexual person.

A child not born in lawful wedlock would, however, be regarded as legitimate in England if, and
only if, it is legitimate by the law of the domicile of both the parents at the time it was born.

Traditionally, the children of polygamous marriage is not regarded as legitimate, however, in

In Re Bischoffsheim, a single Judge has laid down the rule that English courts would recognize
the status of legitimacy if the child is regarded as legitimate by the law of the domicile of the
parents at the birth of the child. This judgment is severely criticized as it is difficult in
application where parents have different domiciles. However, a step forward is taken by the Law
Commission in England to answer the difficulties i.e. it suggested that the lex domicili to be
adopted should be that with which the child was most closely connected. Under the rule of
‘putative marriages’, children of a void marriage are recognized as legitimate if either of the
parents believed that the marriage is valid. This rule is also recognized by the Legitimacy Act
1959 subject to the provision that the father should be an English citizen. Question often arises as
to whether this rule will be applicable where the domicile country recognizes this rule and
suggestions are often in affirmative.
Position in India

In India, ‘Legitimacy’ is a status of a child being born during the continuance of a valid
marriage between the mother and any man, or within 280 days after its dissolution if the mother
remains unmarried.

Unless it is shown that the parties to the marriage had no access to each other at any time when
he could have been conceived, his birth is treated as a conclusive proof of he being legitimate.

Under Section 112 of the Indian Evidence Act, 1872 (herein after referred to as ‘the Act’), if the
applicant is domiciled in India on the date of application, the Indian court has jurisdiction to
grant a declaration that he is the legitimate child of his parents.

Though there is no decision of the Supreme Court on the point, it has been held that illegitimate
children cannot succeed to their father’s estate on intestacy but can succeed mothers’ estate. If
the child has born of a marriage which is null and void under section 11 or 12 of the Hindu
Marriage Act, 1955, the child is deemed to be legitimate and consequently can succeed to the
estate of the father on intestacy

In Mahomedan law, applicable to Sunnis governed by the Hanafi School, illegitimate children
cannot inherit from the father, but can from the mother. But in case of Shias, the illegitimate
children can never inherit.

Illegitimate children cannot succeed to property on intestacy under the Indian Succession Act,
1925, Christians, Parsis and other religious groups are governed under this statute.

Nepal

Legitimacy’ is a status of a child being born during the continuance of a valid marriage between
the mother and any man, or within 272 days after its dissolution. “A child born within Two
Hundred and Seventy Two days of the date of dissolution of the conjugal relation pursuant to the
Act shall, unless otherwise proved, be the child of the divorced husband”(No 3 of Chapter on
Husband and Wife of Muluki Ain 2020)

Legitimation

Legitimization is a process to recognize the child of being legitimate. Subsequent Marriage

Position in England

English courts had jurisdiction to entertain proceedings for a declaration that a person was
legitimated, or not if, at the date the proceedings are commenced, the applicant is domiciled in
England or had been habitually resident in England for at least one year.
 The role of Conflict of Law is to choose the system of law which shall determine whether
legitimating by this method is effective or not. The rule finally established at common by Re
Grove, after some hesitation in Boyes, is that a foreign legitimating by subsequent marriage is
not recognized in England unless the father is domiciled, both at the time of the child’s birth and
also at the time of the subsequent marriage, in a country whose law allows this method of
legitimating. The present law is that, where the parents of an illegitimate person marry, the
marriage shall, if the father is at the date of the marriage domiciled in England and Wales, render
the person, if living, legitimate from the date of the marriage.

With regard to persons who are not domiciled in England and Wales, section 3 of the Legitimacy
Act 1976 provides as follows:

“…where the parents of an illegitimate person marry one another and the father of the
illegitimate person is not at the time of the marriage domiciled in England and Wales but is
domiciled in a country by the law of which the illegitimate person became legitimated by virtue
of such subsequent marriage, that person, if living, shall in England and Wales be recognized as
having been so legitimated from the date of the marriage notwithstanding that, at the time of his
birth, his father was domiciled in a country the law of which did not permit legitimation by
subsequent marriage.”

This law discards the rule that the father’s domicile at the time of the child’s birth is sine qua
non, instead the law of the father’s domicile at the time of the marriage is the sole decisive
factor.

Position in India

Indian law, whether Hindu law or Muhammadan law, only recognizes the concept of legitimacy
of a child and not of legitimation. When there is any doubt as to legitimacy of a child, under
Muhammadan law the acknowledgment by the presumptive father is the proof that the child so
acknowledged is the legitimate child of the presumptive father, provided that legitimacy is
possible.

In Bibi Nanyer-Omissa, even in the absence of evidence of marriage between the parties, the
Privy Council on acknowledgement declared the child to be legitimate. But the Muslim scholars
criticized this judgment and have favoured Muhammad Allahdad Khan, where the court held that
a child whose illegitimacy is proved beyond doubt, by reason of the marriage of its parents being
either disproved or found to be unlawful cannot be legitimatized by acknowledgment. In the
State of Goa, and the Union Territories of Daman and Diu, the Portuguese Civil Code, 1867
continues to apply, and under Article 119 to 122 of that Code, legitimation is recognized.
Germany

The constitution of the Federal Republic of Germany

Adopted on: 23 May 1949

Basic Rights

Article 6

Marriage and Family, illegitimate children

1. Marriage and family are under the special protection of the state.
2. Care and upbringing of children are the natural right of the parents and primarily their
duty. The state supervises the exercise of the same.
3. Against the will of the persons entitled to their upbringing, children may only be
separated from the family, pursuant to a statute, where those so entitled failed or where,
for other reasons, the children are endangered to become seriously neglected.
4. Every mother is entitled to protection by care of the community.
5. Illegitimate children, by legislation, have to be provided with the same conditions for
their physical and mental development and for their place in society as are legitimate
children.
Nepal

In Nepal Law has not recognized the concept of legitimacy of child, But marriage is the only
way of legitimation of the child. And Supreme Court of Nepal has produced some important
verdict for the legitimation. When there is a question of the legitimacy the statement of the
mother is final and the name which she gives to the court is the proper father of her child.
Earlier, the mother’s statement was considered final while identifying the father of illegitimate
children (Bachchi Bista vs Kabindra Bahadur NKP 2034, pg 138, Wangdel vs Janu Tamangni,
NKP 2045, pg. 127 and Ratnalal Kanaudiya vs Renu Adhikary, NKP 2055, pg. 460) because
“according to Hindu philosophy a mother cannot lie about childbirth. Latest trend introduced
deoxyribonucleic acid (DNA) test for the legitimacy of the child. Legitimation gives legal
recognition to the child and also the property rights. For the first time in Gaumaya vs Rajendra
Kumar Supreme court ordered for DNA test to legitimate the child.

 Gaumaya Sarki had given birth to twins in 1996 though her husband had been working in
India for three years and she had not met him all this while. She filed a paternity suit in
Lamjung district court claiming that her cousin, Rajendra Sarki, who was just 13 years
old then, was the father of the twins. However, another person, Krishna Bahadur Gaire,
claimed he was the real father of the twins as Gaumaya had intimate relations with him as
well. He said he was ready to accept the twins and the mother. In 1998, the district court
decided in favour of Gaire disregarding the mother’s claim as Rajendra was just 13 years
of age. Gaumaya moved Pokhara Appellate Court against the decision. But the appellate
court upheld the district court verdict in 1999. Rajendra, who turned 18 in 2001, then
moved the apex court, claiming to be the father of the twins. The case had been pending
 since then and came up for hearing on Wednesday when a division bench of Justices
Sharada Shrestha and Top Bahadur Magar issued the order that a DNA test be conducted
to decide the paternity of the twins. However, in this case the district and appellate courts
disregarded mother’s claim as she was claiming that a 13-year-old was the father of her
kids.
In the present scenario DNA test is playing vital role to legitimize the child at the same time
DNA test (Bhagalu Chaudhary vs. Sangilal Chaudhary, NKP 2067, pg. 188, Makhamali Mishra
et al vs. laxmikumari Mishra, NKP 2067, pg. 1727, Sita Devi Thakur et al vs. Budhani Thakur,
NKP 2067 pg, 1857, Devi Gurung vs. Neeta Gurung, NKP 2068, pg. 454) is self is not in the
outside of the conflict. The question of fare test is arising and the verdict of supreme court is not
uniform itself.
Legitimacy and property rights

Provisions on partition:

Void marriage and child:-

Children born by from the couple whose marriage has been held to be void pursuant to the
Chapter on Marriage shall also receive their share in property from their parents. (5A, Partition)

Illegitimate child belongs to mother- The children born of a woman staying without having a
particular husband shall receive the share only from the mother's property until the husband is
identified. (No. 7 of partition)

Adoption

Adoption is a process in which a child is adopted by an individual or a family in which he is not

On the basis of location and origin adoption is subdivided into Domestic Adoption and Inter
country adoption. Domestic adoption is the placement of a child for adoption within the country
in which he or she was born and normally resides. On the other hand, Inter country or
international adoption is the placing of a child for adoption outside that child’s country of birth.

Position in England

Adoption is a creature of statute, and the first is the Adoption of Children Act, 1926. An English
court only has jurisdiction if the applicant, or in case of married couple one of the applicants is in
any part of United Kingdom and the child is in England.
 The court applies the English domestic law and adheres to the factors ought to be considered
upon. The practice that the English courts apply the domestic law may yield a different result at
times. The child may be considered as adopted in one country and may have natural parent at the
same time. This is therefore suggested that the court have to consider the law where the child is
domiciled to avoid bad outcome. Foreign adoption orders are recognized if the person who
adopts is domiciled in that country.

The United Kingdom has adopted the Hague Convention on Protection of Children and
Cooperation in respect of Inter-country Adoption, 1993 and protection is available in all
convention country if the child is habitually resident in a Convention country.

Position in India

Under Section 3(57) of the General Clauses Act, 1897, the definition of „son‟ includes an
adopted son and under Section 12 of the Hindu Adoptions and Maintenance Act, 1956, an
adopted son or daughter is entitled to succeed to the estate of his adoptive parents. Adoption can
only be recognized if it is permitted by statute, or is accepted by custom.

In India, the only religion that maintains a statutorily recognized right to adopt is the Hindu
religion under the Hindu Minority and Guardianship Act, 1956. Barring Muslims, adoption in
India in respect of all religious communities is governed by the Guardians and Wards Act, 1890.
The Acts contain no reference to domicile, nationality, residence etc as condition precedent to
their applicability. Personal law of Muslims, Christians, Parsis and Jews does not recognize
complete adoption. As non-Hindus do not have an enabling law to adopt a child legally, those
desirous of adopting a child can only take the child in 'guardianship' under the provisions of the
GWA, 1890.

This however does not provide to the child the same status as a child born biologically to the
family. Unlike a child adopted under the Hindu Adoption and Maintenance Act, 1956 the child
cannot become their own, take their name or inherit their properly by right. This Act confers only
a guardian-ward relationship. This legal guardian-ward relationship exists until the child
completes 21 years of age. Foreigners, who seek to adopt an Indian child, do so under this Act to
assume legal Guardianship of the child, after giving an assurance to the court, that they would
legally adopt the child as per the laws of their country, within two years after the arrival of the
child in their country. Adoption under the Hindu Minority and Guardianship Act, 1956 and the
Guardians and Wards Act 1890 is a private action33 and as such does not require the intercession
of a court except when the minor is offered for adoption by a guardian appointed by will or other
instrument or appointed or declared by the court. The competent court for the purpose is the
district court.

A foreign adoption order is recognized in India subject to the provisions of Code of Civil
Procedure. In the case of Lakshmi Kant Pandey, the Supreme Court, in the absence of
legislation, framed elaborate guidelines in this matter and held that any adoption in violation of
or noncompliance with may lead adoption to be declared invalid and expose person concerned
with to strict action including prosecution.

Further the court held that before making an adoption order, the court must see that the adoption
by a foreigner is in accordance with the law of his or her country and is legally valid by that law.
In Suganchand, the court held that the adopted son is entitled to the property of the deceased
adoptive father, even if the adoption has been made after the death of the father by the adoptive
father.

The Supreme Court has laid down that every application from a foreigner/NRI/PIO desiring to
adopt a child must be sponsored by a social or child welfare agency recognized or licensed by
the Government or a Department of the Foreign Govt. to sponsor such cases in the country in
which the foreigner is resident. The foreign agency should also be an agency „authorized‟ by
CARA, Ministry of Social Justice & Empowerment, Govt. of India. No application by a
foreigner/NRI/PIO for taking a child in adoption should be entertained directly by any social or
child welfare agency in India.

Adoption in Nepal

There are provisions of adoption in Muluki Ain. The condition which says, “A person except one
who has his or her son or daughter may adopt a son or daughter by executing a deed to that
effect. Provided that, a person who has got a son and a person who has got a daughter shall not
be entitled to adopt a son and daughter, respectively”. (No. 2 Adoption)

Other conditions are:

 One who is once adopted as an adopted son or adopted daughter shall not be readopted
as a son or daughter. Such adoption, if any, shall be void. (2B)
 Legal process must be followed
 There shall be a difference of at least thirty years between the age of an adopted son or
daughter and the adoptive person. (9B)
Status of adopted child

 An adopted son or daughter shall be entitled to the same rights as of a natural son or
daughter. Such an adopted son or daughter shall not be entitled to make a claim for
partition share from his or her natural father. (9C)
 In cases where even a daughter is born from the adoptive parents after a female has been
adopted as a daughter, such adoption shall not be invalid by that reason. The adopted
daughter shall be as a natural daughter. (9D)
 If the person who has abandoned a child is traced, and it is proved that the child has been
abandoned with the consent of both the father and mother, the partition shares of
both of them, along with such a share of the child, shall be provided to the person
subsisting the child.
  If only one of the parents is found to be involved in such abandonment, then the partition
share of the said parent and that of the child shall be provided to the person subsisting the
child (10)
 The adoption of any person, who has been adopted pursuant to the duly signed deed by a
person entitled to make such an adoption by virtue of not having any issue at the time of
adoption, shall not be rend invalid as a result of the subsequent birth of a son from the
person making the adoption. He shall be entitled to the partition share equivalent to that
of a natural son. (No.3)
Invalidating Adoption

 One who has only one son or daughter shall not allow giving the son or daughter for
adoption nor shall the adopting person adopt him. Any such adoption shall be void. (12)
 Age gap-30 years out of relatives should maintain otherwise adoption is void
Adoption by foreigners

 If any foreign national wishes to adopt any citizen of Nepal, who may be adopted as a son
or daughter in accordance with the law, the Government of Nepal may, after considering
the character and economic condition of such a foreign national and on
recommendation of the concerned foreign government or embassy, permit adoption
of a son or daughter on such terms and conditions as the Government of Nepal may
consider appropriate. (12A)
 In giving permission to a foreign national to adopt a citizen of Nepal pursuant to this
Chapter, the Government of Nepal shall give permission only if the law of the country
of such a foreign national provides that an adopted son or daughter has the same
right as a natural son or daughter has.
Key problems
 Binding limitation of Son and daughter (No son adoption who has son and no
daughter adoption who has daughter etc and Only one child adoption limitation)
 Silent about re-adoption
 No adoption provision for single parent
 No specific procedure and monitoring provision for foreign parents
Also see the provision of Civil Code 2074 and compare the provisions with Muluki Ain 2020
Hague Conference on Adoption

Recognizing some of the difficulties and challenges associated with international adoption, the
Hague Conference on Private International Law developed the Convention on Protection of
Children and Co-operation in Respect of Inter country Adoption which came into force on 1 May
1995. The main objectives of the Convention are to establish safeguards to ensure that inter
country adoptions take place in the best interests of the child and with respect for his or her
fundamental rights as recognized in international law.

Secondly, to establish a system of cooperation amongst Contracting States to ensure that those
safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children.

Thirdly, to secure the recognition in Contracting States of adoptions made in accordance with the
Convention