Legitimacy

 

Legitimacy

Legitimacy is defined under section 16 of Hindu marriage act of children of void an

d voidable marriages. As per this section

A child of null and void marriage would have been 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 and whether a decree

 of nullity is granted in respect of that marriage under this act and whether the

 marriage is held to be void otherwise than on a petition under this act.

As per S. 112 Indian Evidence Act a child is presumed to be legitimate if it was

 born during the continuance of a valid marriage between his mother by any man

 or within 280 days after its dissolution, the mother remaining unmarried. The

 presumption can be rebutted if it is shown by competent evidence that: (i) parties

 to marriage had no access to either at any time when the child could have been

 begotten (ii) it does not neces­sarily mean that the child is bastard because he is

 born beyond 280 days, as there is a wide variation. Posthumous child is the one

 who is born after the death of the father; begotten during the lifetime of his father,

 the mother being conceived by said father.

Medico legal aspects of legitimacy

The question of legitimacy arises in connection of right to inherit property when

 disputed and affiliation cases etc.

The following questions need to be discussed:

Average duration of pregnancy between concep­tion and delivery:

(i) Period between last menstrual period and delivery: it cannot be relied upon

 because menstruation may cease from other causes and may continue after

 pregnancy has com­men­ced. Impreg­nation may occur at any period during

 menstrual period

(ii) Sperms retain their activity for 2-3 days in the vagina and 4-5 days in cervix,

 uterus or fallo­pian tube. Thus, the exact time of concep­tion is not known. It is

 known that ovulation occurs 14 days prior to next period and the ovum persists for

 a day or two after it is shed unless fertilized. Therefore, fertili­zation occurs if sperm

 retains its power and unites with the egg cell in the fallopian tube. Thus, the exact

 period is not known but calcu­lated from experience i.e., 280 days or 40 weeks or 10

 lunar months which is equivalent to 10 times of normal intermenstrual period.

     

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