Hi, Today we will clear the concept about, Legitimacy means“who is the legal father of the child who was born after two months of the marriage?” This topic is related to the Indian Evidence Act 1972.
The question is, There is one woman and she got married in January 2020. In March 2020 she gave birth to a boy child. Please don’t think here how she can give birth to a child, because it is not the question of Biology, It is the question of Law. It’s very simple to understand that she was pregnant before marriage, obviously. So the question is There is one woman and she got married in January 2020. In March 2020 she gave birth to a boy child, here the question of law is, “Who is the father of that child?”
“Who is the father of that child?”
Is the father of that child is her husband to whom she got married two months? Or the father of that child is someone else? This is the question of the legitimacy of the child.
Why legitimacy is necessary? :-
So, when our law was made, in 1872, even when we did not enter in 1900. At that time in Society, the name of children’s father was most important to live/survive in the normal society. But the thoughts of today’s era are totally changed. In today’s era to become a single mother is a prestigious thing. And society also respects single mothers. But in a very deep society to be a single mother is not considered a good thing. But educated people and an affluent society see a single mother with respect. So, In the olden days/era, the father name of the child is very important. Therefore you can see in old movies, that when a girl becomes pregnant, then her parents start to find out a boy for her marriage. “What is the reason behind that?”
“What is the reason behind that?”
The reason behind that is Under Section 112 of the Indian Evidence Act says that, during the valid marriage/course of the marriage, if the woman gives birth to a child, so the law will be considered that the husband of that woman is the father of that newborn child. It is called that conclusive proof of legitimacy.
Meaning that the newborn baby will get the name of the husband of that woman as a father. And the meaning of Conclusive proof means, “Apart from this, nothing else will be allowed to be proved.”
One more thing is necessary here to understand if someone gets divorced, and after the divorce that divorce woman give birth to a child within 280 days of the divorce, then according to law it is considered as the father of that child is her husband with whom she got a divorce.
Again take this question technically, if a woman gets divorced in November and in January she gets married to another man and gave birth to a child in March. Then who will be the father of that child? ( her past husband or her present husband? )
Let me explain to you, If she doesn’t get married in January, then it is considered as the father of that child is her past husband with whom she got divorced. But in January she gets married to another man so now legally the father of that child is her present husband ( According to Section 112 of Indian Evidence Act 1872. ) because she gave birth to that child during the course of the marriage.
Now let us understand Section 112 of the Indian Evidence Act in detail.
Section 112 in The Indian Evidence Act, 1872
112. Birth during the marriage, conclusive proof of legitimacy.—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.
After divorce, if the child takes birth within 280 days of the divorce, so that child is considered a legitimate child.
I already explained it above in a very simple manner. But here one thing is necessary to understand, this act did not tell about biological father. It tells about Public Order, that the life of that child will not be affected by the behaviour of society or her mother’s conduct.
Let us understand it by one Judgement. In 1982, in the Chandramati case, Chandramati gave birth to a child after the sterilization of her husband. In this case, the question of law is, “who is the father of that child?”.
In the Judgement of this case, Court said that after sterilization if marriage is in course, and if his wife gives birth to a child then legally her husband is considered as the father of that child. Court says that sterilization does not destroy legitimacy.