CONFLICT OF LAWS IN LEGITIMACY, LEGITIMATION AND ADOPTION

Under the guidance of:

Ms. Divya Salim
Assistant Professor of Law, School of Law, KIIT University, Bhubaneswar

Satya Ranjan Swain

B.A.LL.B. (Hons.) 10th Semester
School of Law, KIIT University, Bhubaneswar
Mob: 08130074091(Del.)
E-mail: satyaranjankls@gmail.com
Web: http://satyaranjankls.blogspot.in

Ishani Das
B.A.LL.B. (Hons.) 10th Semester
School of Law, KIIT University, Bhubaneswar

Conflict of Laws in Legitimacy, Legitimation and Adoption

Satya Ranjan Swain

Contents
Selected Bibliographyii
Statutesiii
Cases. .iii

1.

Introduction .......................................................................................................................... 1

2.

Legitimacy ........................................................................................................................... 1
2.1.

Position in England .......................................................................................................... 2

2.2.

Position in India ............................................................................................................... 3

3.

Legitimation ......................................................................................................................... 4
3.1.

Position in England .......................................................................................................... 4

3.2.

Position in India ............................................................................................................... 5

4.

5.

Adoption .............................................................................................................................. 6
4.1.

Position in England .......................................................................................................... 6

4.2.

Position in India ............................................................................................................... 7

4.3.

Hague Conference on Private International Law ............................................................. 8

Conclusion ........................................................................................................................... 9

Conflict of Laws in Legitimacy, Legitimation and Adoption

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Selected Bibliography
Fawcett, James etal., Cheshire and Norths Private International Law, 14th edition, Oxford
University Press, New Delhi (2008)
Setalvad, Atul M., Conflict of Laws, 2nd edn., LexisNexis Butterworths Wadhwa, Nagpur (2009)

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Statutes
Adoption Act, 1976 ....................................................................................................................................................... 6
Adoption of Children Act, 1926 .................................................................................................................................... 6
Convention on Protection of Children and Co-operation in Respect of Inter country Adoption ................................... 8
Guardians and Wards Act, 1890 .................................................................................................................................... 7
Hindu Adoptions and Maintenance Act, 1956 ............................................................................................................... 7
Hindu Marriage Act, 1955 ............................................................................................................................................. 3
Hindu Minority and Guardianship Act, 1956 ................................................................................................................ 7
Indian Evidence Act, 1872 ............................................................................................................................................ 3
Indian Succession Act, 1925.......................................................................................................................................... 4
Legitimacy Act 1959 ..................................................................................................................................................... 3
Legitimacy Act 1976 ..................................................................................................................................................... 3
Portuguese Civil Code, 1867 ......................................................................................................................................... 6

Cases
Bamgbose v. Daniel [1954] 3 All ER 263. .................................................................................................................... 2
Bibi Nanyer-Omissa v. Bibi Zainirun 11 WR 476. ........................................................................................................ 5
Bischoffsheim, Re [1948] Ch 79, [1947] 2 All ER 830 .................................................................................................. 2
Boyes v. Bedale (1863) 1 Hem & M 798 ....................................................................................................................... 4
Daddo Atmaram Patil v. Raghunath Atmaram Patil AIR 1969 Bom 176 ..................................................................... 3
Grove Re, (1888) 40 Ch D 216. ..................................................................................................................................... 4
Gurnam Kaur v. Puran Singh (1996) 2 SCC 567. ......................................................................................................... 3
Heron v. National Trustees Executors and Agency Co of Australasia Ltd [1976] VR 733. .......................................... 5
J v. C [2007] Fam 1 (CA) .............................................................................................................................................. 2
Knowles v. Knowles [1962] 1 All ER 659. .................................................................................................................... 2
Lakshmi Kant Pandey v. Union of India (1984) 2 SCC 244; AIR 1984 SC 469 ........................................................... 8
Muhammad Allahdad Khan v. Muhammad Ismail Khan (1888) ILR 10 All 289. ......................................................... 5
R Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1 at 10, [1963] 3 SCR 22. ..................................... 1
Sadik Husain Khan v. Hashim Ali Khan (1916) ILR 38 All 627, PC. ........................................................................... 5
Suganchand Bhikamchand v. Mangibai Gulabchand AIR 1942 Bom 185, (1942) 44 Bom LR 358. ........................... 8

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Conflict of Laws in Legitimacy, Legitimation and Adoption

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1. Introduction
The branch of Indian law, in contradistinction to the ordinary local or domestic law of India,
which is concerned with cases having a foreign element, is known as the conflict of laws or
private international law. And foreign element means a contact with some system of law other
than the Indian law.1 Conflict of Laws is not a law governing relations between independent
States rather is simply a branch of civil law of the States evolved to do justice between litigating
parties in respect of transactions or personal status involving a foreign element.2 Conflicting laws
of different state legislatures in India, the overlapping entries in different lists3, the conflict of
different personal laws are not the subject matter, we are here concerned with.
Legitimacy in laymans language means the status acquired by a person who is born to
parents who are married to one another at the time of the birth. Legitimation means that a person
who has not been born to married parents acquires the status of legitimacy as a result of some
act. Adoption involves the extinction of the parental links between the child and the biological
parents and the creation of similar links between the child and the adoptive parents.4

2. Legitimacy
A child is, or is presumed to be, legitimate if it is born anywhere in the world in lawful
wedlock.5 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.

What is meant by the Conflict of Laws, Conflict of Laws, Halsbury Law Journal, Vol:10, p. 75.001.
R Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1 at 10, [1963] 3 SCR 22.
3
See Seventh Schedule of the Constitution of India.
4
Fawcett, James etal., Cheshire and Norths Private International Law, 14th edition, Oxford University Press, New
Delhi, 2008, p. 1141-2.
5
Setalvad, Atul M., Conflict of Laws, 2nd edn., LexisNexis Butterworths Wadhwa, Nagpur, 2009, p. 397.
2

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2.1.

Position in England

The system and the attitude of denying an illegitimate child the right to inherit his fathers
property has now markedly changed in England.6 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.7 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.8 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.9 This
rule only applies where the parties to the marriage are Man and Women and, as decided in J v.
C10, 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.11
Traditionally, the children of polygamous marriage is not regarded as legitimate,
however, in England, they are regarded as legitimate if they are so regarded by the law of the
country where the parents were domiciled when the child was born.12
In Re Bischoffsheim,13 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

Dicey, Morris & Collins, Conflict of Laws, 14th edn., paras 20-002 and 20-010 c.f. Setalvad, Atul M., Conflict of
Laws, 2nd edn., LexisNexis Butterworths Wadhwa, Nagpur, 2009.
7
Id. R 103, p 1036-37.
8
Knowles v. Knowles [1962] 1 All ER 659.
9
See The Human Fertilisation and Embryology Act, 1990.
10
J v. C [2007] Fam 1 (CA).
11
Supra note 6, r 104(2), p. 1040.
12
Bamgbose v. Daniel [1954] 3 All ER 263.
13
Bischoffsheim, Re [1948] Ch 79, [1947] 2 All ER 830.

Conflict of Laws in Legitimacy, Legitimation and Adoption

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Commission in England to answer the difficulties i.e. it suggested that the lex domicilii to be
adopted should be that with which the child was most closely connected14.
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 15 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 domicle country
recognizes this rule and suggestions are often in affirmative.16

2.2.

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 fathers estate on intestacy 17 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 intestacy18.

14

Supra note 6, para 20-015.

Replaced by Legitimacy Act 1976.
16
Cheshire, North & Fawcett, Private International Law, 14th edn. P. 1149 c.f. Setalvad, Atul M., Conflict of Laws,
nd
2 edn., LexisNexis Butterworths Wadhwa, Nagpur, 2009.
17
Daddo Atmaram Patil v. Raghunath Atmaram Patil AIR 1969 Bom 176; Ramkali v. Mahila Shyamwati AIR 2000
MP 288.
18
Gurnam Kaur v. Puran Singh (1996) 2 SCC 567.
15

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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.19
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.

3. Legitimation
Legitimization is a process to recognize the child of being legitimate. Subsequent Marriage
between the parties, Acknowledgment by the man20 etc. are the examples of legitimation.

3.1.

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.21
The role of Conflict of Law is to choose the system of law which shall determine whether
legitimation by this method is effective or not. The rule finally established at common by Re
Grove22, after some hesitation in Boyes23, is that a foreign legitimation by subsequent marriage is
not recognized in England unless the father is domiciled, both at the time of the childs birth and
also at the time of the subsequent marriage, in a country whose law allows this method of
legitimation. 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.24

Mullas principles of Mahomedan Law, 19th edn., p. 81 and 99.

In several states in Europe and in North and South America, a father is allowed to legitimate his child by formally
recognizing him as his own.
21
Supra note 6, r 108, p. 1065.
22
Grove Re, (1888) 40 Ch D 216.
23
Boyes v. Bedale (1863) 1 Hem & M 798.
24
Section 2 of the Leegitimacy Act, 1976.
19
20

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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 recognised 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 fathers domicile at the time of the childs birth is sine qua
non, instead the law of the fathers domicile at the time of the marriage is the sole decisive
factor25.

3.2.

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.26
In Bibi Nanyer-Omissa27, 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 Khan28, 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.
25

Heron v. National Trustees Executors and Agency Co of Australasia Ltd [1976] VR 733.
Sadik Husain Khan v. Hashim Ali Khan (1916) ILR 38 All 627, PC.
27
Bibi Nanyer-Omissa v. Bibi Zainirun 11 WR 476.
28
Muhammad Allahdad Khan v. Muhammad Ismail Khan (1888) ILR 10 All 289.
26

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4. Adoption
Adoption is a process in which a child is adopted by an individual or a family in which he is not
born to. It is a transaction where the mutual rights and responsibilities of the child are
permanently transferred from the biological parents to the adoptive parents.
On the basis of parties involved, adoption is divided as Open adoption, Semi-open
adoption and Closed adoption29. 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
childs country of birth.

4.1.

Position in England

Adoption is a creature of statute, and the first is the Adoption of Children Act, 1926. 30 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.31 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.32 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.

29

The author has deliberately not discussed these types of adoption as they are not relevant for the present
discussion.
30
Now replaced by the Adoption Act, 1976 c.f. Setalvad, Atul M., Conflict of Laws, 2nd edn., LexisNexis
Butterworths Wadhwa, Nagpur, 2009, p. 401.
31
Supra note 5, r 110, p. 1071-2.
32
Id. r 111(4), p. 1080-1.

Conflict of Laws in Legitimacy, Legitimation and Adoption

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4.2.

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

33

Section 9(4) of the Hindu Minority and Guardianship Act, 1956.

Conflict of Laws in Legitimacy, Legitimation and Adoption

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district court34. A foreign adoption order is recognized in India subject to the provisions of Code
of Civil Procedure35.
In the case of Lakshmi Kant Pandey36, 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,37 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.

4.3.

Hague Conference on Private International Law

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

34

Section 7(3) of the Guardians and Wards Act 1890.

Section 13 of the Code of Civil Procedure, 1908.
36
Lakshmi Kant Pandey v. Union of India (1984) 2 SCC 244; AIR 1984 SC 469.
37
Suganchand Bhikamchand v. Mangibai Gulabchand AIR 1942 Bom 185, (1942) 44 Bom LR 358.
35

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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.

5. Conclusion
With the increasing transnational movement of the population and the growing concept of global
citizenship, the issue relating to legitimacy, legitimation and adoption has become nothing less
than complex. The position in England has changed and has given respect to the lex domicile.
Foreign orders on legitimacy and legitimation are recognized in England, though adoption is still
governed under the domestic laws. On the other hand, in India, adoption is majorly influenced by
personal laws and with no recognition to Legitimation.