Marriage and Divorce Law

Illegitimate Child

The birth of an illegitimate child to the wife may cause cruelty to husband. Section 112 of the Indian Evidence Act, 1872 deals with conclusive proof of legitimacy and it reads as under:

“The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten”.

When a child is born during a lawful wed-lock, there is an initial presumption of legitimacy; in other words, the husband had intercourse with the wife at the time when the child must have been conceived. This rule of law is, however, a rebuttable one and may be rebutted by showing non-access between the parents at the time when the child could have been conceived. Once access of intercourse by the husband is proved, no evidence can be allowed to show that the child is not the child of the husband and it is immaterial how soon after marriage the child is born. The period of gestation is 280 days, thus, a child born within less than 280 days of the marriage will, in the absence of evidence of non-access of the parents, be presumed under this section to be legitimate and this presumption applies irrespective of the fact whether the mother was married or not at the time of conception. If the husband succeeds in showing that the parties to the marriage had no access to each other at the time when the child could have been conceived, this presumption can be rebutted.

The word ‘begotten’ used in Section 112 of the Evidence Act does no mean conceived but means born, but when the parents of the child had been living as husband and wife and had been cohabiting with each other, it can not be construed that there exists the presumption of child being legitimate. It is neither conclusive nor material that they did not have access to each other prior to their marriage when the child could be conceived.

When a man marries a woman whom he knows to be with child, he may be considered as acknowledging that the child is his. Section 112 of the Evidence Act has followed the English Law the concern of which was that it did not concern itself with the conception, but considered a child legitimate who was born of parents married before the time of his birth though they were unmarried when it was begotten. These observations bring out the meaning of the word ‘begotten’ as ‘conceived’. When it uses the word begotten at a point of time before marriage, and the actual birth of the child after the marriage. What the English Law conveys is the emphasis for legitimacy is on birth rather than on conception which may take place before the marriage but the birth takes place after the marriage. It does not nullify the circumstance of non-access of the spouse before the marriage when the child was conceived which circumstance has the effect of rebutting the presumption of legitimacy contemplated under Section 112 of the Evidence Act, 1872.

This Section only refers to the point of time of the birth of the child as the deciding factor and not to the time of the conception of the child. The point of time of the conception of that child has to be considered only to see whether the husband had no access to the mother. If he had access, then no doubt, the child that is born must be treated as the child of the father.

The child born in wed-lock should be treated as a child of the father, who was then the husband of the mother unless it is shown by reliable evidence that he had no access to the mother, at the time of conception, irrespective of whether the mother was married woman or not. There is no room to doubt that the word begotten does not mean conceived. So it is clear that begotten and conceived does not mean born. The emphasis on birth during wed-lock as against conception is for the reason that sa a general rule it is the birth after marriage which confers legitimacy on a child as against conception which is only exceptional circumstance when at that point of time there had been no access between the two spouses and it is on account of the generality of the provision that the birth of the child has been made a deciding factor for the question of legitimacy of a child.

The birth of an illegitimate child would cause great annoyance to the husband. He would start hating the wife on account of mental torture he receives at the birth of such a child and which becomes intolerable to him, and in the resultant wife receives a harsh treatment at the hands of the husband and her in laws; who would ask her whose child was this whom she had delivered. This behaviour of the hatred on the part of the husband on the question of illegitimacy of the child towards the wife would be the direct outcome of the frustration which was the direct result of the aforesaid act of the wife of giving birth to an illegitimate child is taken as the wife had treated the husband with cruelty. It is irrelevant whether the husband convey no shock or sorrow to his relatives.

Any person aggrieved by this mischief on the part of his wife can claim remedy of a decree of nullify for annulling the marriage under Section 12 (1) (d) of the Hindu Marriage Act by bringing a petition for that relief within one year from the date of the marriage as postulated by sub-section 2(b) (ii) of the Section 12. Instead thereof, the husband can also avail remedy of divorce on the ground of cruelty emanating from the same facts on which he could have sought the decree of nullify, under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 (as amended up to date) and this option on the part of the husband could in no way deprive him to remedy of divorce, as the two remedies are distinct and separate from each other, and therefore, waiver on his part of one remedy can not be said to tantamount to his condoning cruelty on part of the wife towards him.

It is not necessary for the husband to immediately kick out the wife from the matrimonial house, for after delivery the lady needs rest for about one month and allowing the wife to remain and l8ive in her matrimonial home can not be adversely inferred against the husband that he had actually condoned the offence of cruelty.

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