Legitimacy, legitimation and

Adoption
Units 15 and 16
Meaning of legitimacy and legitimation
• Legitimacy means the status acquired by a person who is born in lawful wedlock.
If the marriage is void, the children born out of it are considered to be illegitimate.
• Legitimation means that a child who is illegitimate at the time of birth acquires the
status of a legitimate person as a result of some act that occurs after the date of its
birth such as the subsequent valid marriage of its parents.
• At one time, the question whether a person was the legitimate issue of his parents
was of great importance in the field of succession to property. A gift to the
children of a particular person in a will was taken to be the gift to legitimate
children of that person unless there is clear intention of a contrary intention.
• The situation was materially changed by a Family Reform Act 1969 which placed
legitimate and illegitimate children on an equal footing in the matter of succession
to property.
Legitimacy at birth: Which law to decide?
• In a case involving foreign element, when the question is whether a person
is born legitimate or not, by reference to which law is that question to be
decided?
• In English domestic law, before the Legitimacy Act 1959 the
well-established rule was that no child could acquire the status of legitimacy
unless born out of a parent whose marriage was valid at the time of its birth.
But many countries including Scotland had long recognized the doctrine of
putative marriage under which a child could be legitimate even though his
parents were not validly married.
• Under this doctrine if the spouses bonafide believed in the validity of their
marriage, the children born will be regarded as legitimate although the
marriage was in fact invalid.
• The will of a testator dying domiciled in England bequeaths a legacy to the
legitimate children of X and Y. X and Y were not validly married. But they were
domiciled in a country where the doctrine of putative marriage was recognized and
under this doctrine the children of X and Y would be legitimate.
• The English court has to decide whether the legacy could take effect and for that
purpose determine whether the children of X could be regarded as legitimate.
• In determining the legitimacy of the children of X and Y should the court apply
English domestic law or the lex domicili of X and Y?
• The view has been expressed by some writers that under the above circumstances
the English test of birth in lawful wedlock should be applied.
• When we come to the English cases, we are confronted with 2 important
conflicting decisions: Shaw v Gould and In Re Bischoffsheim.
Shaw v Gould
• A testator domiciled in England bequeathed certain funds in trust for
Elizabeth Hickson for life and after her death in trust for her children.
The will also devised some English lands after her death to her first
and other sons lawfully begotten.
• Elizabeth when she was only 16 years old was induced fraudulently by
Buxton, a domiciled Englishman to marry him in England.
• But she was taken away by her parents just after the marriage
ceremony and the marriage was never consummated. After some years
Elizabeth wanted to marry another domiciled Englishman named
Shaw in Scotland.
Shaw v Gould
• To facilitate this marriage a scheme was devised to dissolve Buxton’s
marriage by a decree obtained from a Scotland court. Buxton was paid
a sum of money to go to Scotland and live there for 40 days to enable
him to obtain a domicile in Scotland.
• On the basis of this domicile, a Scottish Court granted a decree of
divorce dissolving this marriage between Buxton and Elizabeth.
• After this Elizabeth married Shaw in Scotland. They lived together in
Scotland and Shaw acquired a Scottish domicile of choice. While
Buxton was still alive 2 daughters and a son were born to Elizabeth
from Shaw in Scotland.
Shaw v Gould
• At the time of the present proceedings all the original parties, namely
Buxton, Elizabeth and Shaw were dead.
• The questions to be decided were (1) Whether the 2 daughters and 1
son were entitled to the funds under the will as the children of
Elizabeth? (2) whether the son was entitled to the lands as her son
lawfully begotten?
• By Scottish law, the divorce and the marriage with Shaw were valid.
• At the time when the children were born, Shaw was domiciled in
Scotland and hence the lex domcili was Scottish law and by Scottish
law, the children were legitimate.
• But the House of Lords applied the English rule of birth in lawful wedlock and
held that the children were not legitimate and could not take under the will.
• The question of legitimacy was made to depend upon the validity of the Shaw
marriage which was in turn made to depend upon the validity of the Scottish
divorce.
• The Scottish divorce could not be recognized in England because it was obtained
by collusion and the Scottish Court was not competent to dissolve the marriage
although Buxton had secured by residence of 40 days a domicile in Scotland in the
Scottish sense at the time of the divorce proceedings.
• In the eyes of English law Buxton continued to have his English domicile and his
marriage with Elizabeth continued to be in force. Consequently Elizabeth’s
subsequent marriage with Shaw was invalid and the children were clearly
illegitimate.
In Re Bischoffsheim
• In this case, a testator domiciled in England directed in his will that
certain funds should be held in trust for the benefit of his grand
daughter Nesta for life and after her death in favour of her children.
• Nesta married George, her deceased Husband’s brother in New York.
Both Nesta and George were at the time of marriage domiciled in
England. The marriage was void by English law, but valid by the law
of New York.
• After they had acquired a domicile of choice in New York, a son was
born to them. The question was whether the son could be regarded as
the legitimate child of his mother so as to entitle him to benefit under
the will.
In Re Bischoffsheim
• Romer J did not apply the test of birth in lawful wedlock as was done
in Shaw v Gould.
• He held “where succession to personal property depends upon the
legitimacy of the claimant, the status of legitimacy conferred on him
by his domicile of origin will be recognized by our courts and if that
legitimacy be established the validity of his parents’ marriage should
not be entertained as a relevant subject for investigation.
Lex domicile offers a more acceptable test
• It is difficult to reconcile this decision with the earlier decision in
Shaw v Gould. Romer J distinguished Shaw v Gould mainly on the
ground that it involved a question of succession to English land
whereas the case before him involved only a claim to a trust fund.
• Of the respective merits of the 2 decisions, there is a controversy
among the authors.
• According to Cheshire, Shaw v Gould is an abnormal decision given
under exceptional circumstances and its application should be limited
to those circumstances. But Morris controverts this view and is not
prepared to give much weight to the lower court’s decision in Re
Bischoffsheim.
• Also it has now become more difficult to adhere inflexibly to the test
of birth in lawful wedlock since by the Legitimacy Act 1959, English
law has accepted the doctrine of putative marriage.
• The Act provides that where the father is domiciled in England, a child
born of a void marriage is to be treated as legitimate if both or either
of his parents reasonably believed that the marriage was valid.
• Birth in lawful wedlock therefore no longer represents the sole test of
legitimacy in English law.
Legitimation: 2 main methods
• Legitimation is the legal process of making an illegitimate child
legitimate. There are 2 principal methods of legitimation which are
common to most of the legal systems of the world.
• They are 1. legitimation per subsequens matrimonium or legitimation
by subsequent marriage of the parents 2. legitimation by the
recognition given by the child’s father.
Subsequent marriage of the parents
• In England, the feudal doctrine of indelibility of bastardy retained its
stronghold and at common law legitimation could never take place by
the subsequent marriage of the parents.
• Legitimation could be effected only through private Acts of
Parliament.
• The position was changed by the Legitimacy Act of 1926. By virtue of
its provisions legitimation by subsequent marriage has become a part
of English law.
Choice of Law Rule regarding legitimation by
subsequent marriage
• The question here is whether and if so under what circumstances a
foreign legitimation by subsequent marriage would be recognized in
England.
• The common law rule as established in Re Grove is that a foreign
legitimation by subsequent marriage would not be recognized in
England unless the father is domiciled both at the time of the child’s
birth and also the time of subsequent marriage in a country where this
method of legitimation is recognised
In Re Grove
• The question was regarding the legitimacy of Sara Thomegay who was
born in England of a woman domiciled in England. Her father’s
domicile of origin was Switzerland but he had acquired an English
domicile of choice at the time of Sara’s birth in England.
• Her parents subsequently married in England when both of them were
domiciled in England.
• Swiss law recognized legitimation by subsequent marriage and by
Swiss law, Sara would be legitimate.
• Cotton LJ held Sara illegitimate as her father was not domiciled in a
country which recognized this type of legitimation at the time of her
birth.
Re Goodman’s Trust
• A man domiciled in England had 3 children by a woman named
Charlotte to whom he was not married. Later he went to Holland with
Charlotte and acquired a Dutch domicile. He had a 4th child by
Charlotte in Holland. He married Charlotte in Holland and afterwards
had a fifth child by Charlotte.
• The question was whether Charlotte’s children could be recognized as
legitimate for the purpose of intestate succession.
• Legitimation by subsequent marriage is recognized by Dutch Law. The
Court of Appeal held that only the 4th and 5th children were legitimate
as they alone fulfilled the double test in the above rule.
The Legitimacy Act 1926
• The operation of this rule has been substantially curtailed by the
Legitimacy Act 1926 which for the first time introduced the principle
of legitimation per subsequens matrimonium into English law.
• For the statutory provision to be applicable, the father should be
domiciled in England or Wales at the time of his subsequent marriage.
• The effect of subsequent marriage if the above condition is satisfied is
to make the child legitimate from the date of the marriage or the
commencement of the Act whichever is later.
Legitimation by parental recognition
• In many legal systems a father is allowed to legitimize his child by
formally recognizing the child to be his own. The English Legitimacy
Act recognizes only legitimation by subsequent marriage and not by
other methods.
• In this situation the question arises, in the case of foreign legitimation,
by what law will the English Court determine the validity of this type
of legitimation? Is it sufficient that it is valid by the lex domicili of the
father at the time of recognition? Or must it be valid by the lex
domicili of the father at the date of the child’s birth also?
Re Luck’s settlement
• The question was whether David Luck was entitled to a share under the
settlement of his grandfather George Luck.
• David’s father who was domiciled in England, left his wife and went over to
California with David’s mother. David was born in California and was
illegitimate by birth. At the time of his birth, both his father and mother
were domiciled in England.
• Later David’s father acquired a domicile in California. After this David’s
father got a divorce from his first wife and married not David’s mother but
another lady. But he signed a formal document with the consent of his
second wife, by which he acknowledged David to be his legitimate son. The
effect of this act under Californian law was to make David the legitimate
son of his father from the date of his birth.
Re Luck’s settlement
• The majority of the Court of Appeal did not recognize the legitimate
status of David and held that he was not entitled to take under the
settlement as the legitimate grandson of George Luck. The twin test in
legitimation by subsequent marriage was held to be applicable in all
forms of legitimation.
• David’s legitimation was not recognized because at the time of his
birth his father was domiciled in England and English law did not
allow legitimation by recognition.
Adoption
• Adoption is an act by which relations of paternity and affiliation are
recognized as legally existing between persons not so related by
nature.
• One of the earliest statutes dealing with adoption was the English
Adoption Act of 1968 that provides rules for recognition of foreign
adoption and grounds on which recognition may be denied. The
Adoption and Children Act 2002 is a recent statute that amends the
law relating to adoption in England.
Inter-country adoption in India
• All inter-country adoptions, whether it is an adoption of an orphan or
an abandoned, or a surrendered child, or adoption of a relative’s child,
can be done only as per the provisions of the Juvenile Justice Act,
2015 and Adoption Regulation Act, 2017 (framed by CARA). These
provisions give effect to the Hague Convention on adoption, to which
India is a contracting party and, therefore, obligated to adhere to its
conditions.
Inter-country adoption in India
• Eligibility for Intercountry adoption in India

1. Both single adopters and heterosexual married couples may adopt.

2. A married couple with a combined age of up to 90 years, or a single adopter up to

3. A married couple with a combined age of up to 100 years, or a single adopter up

4. A married couple with a combined age of up to 110 years, or a single adopter up

1. Intercountry adoption under the Hindu Adoption and Maintenance Act, 1956 (78 of 1956), initiated after the Adoption
(Amendment) Regulations, 2021, follow a standard procedure for eligible Non-Resident Indian or Overseas Citizen of
India cardholders adopting Indian Hindu children.

2. Hindu prospective adoptive parents residing abroad who wish to adopt an Indian Hindu child born to Indian Hindu parents
in India should reach out to an Authorized Foreign Adoption Agency, the Central Authority, or the relevant Government
Department in their country of residence.

3. The Authorized Foreign Adoption Agency, Central Authority or the concerned Government department sponsors the
application of eligible prospective adoptive parents to the Central Adoption Resource Authority (CARA).

4. The Central Adoption Resource Authority (CARA) shares the sponsoring letter to from the Authorized Foreign Adoption
Agency with the District Magistrate of the child’s residence district.

5. The District Magistrate commissions a family background report, which includes essential documents related to the
biological parents and the child proposed for adoption. This report is conducted through the District Child Protection
Officer or unit outlined in Schedule XXXIV.
Inter-country adoption in India
1. Upon receiving the Family background report, the Central Adoption Resource Authority forwards it to the
relevant Authorized Agency /Central Authority or the concerned Government Department in the adoptive
parent’s country of residence. This is done to obtain necessary permission under the Hague Adoption
Convention or a supporting letter for adoption in countries where the Hague Convention is not adopted.

2. Upon receipt of the verification certificate from the District Magistrate regarding the registered adoption
deed and the necessary permission under Articles 5 or 17 from the receiving country as stipulated in the
Hague Adoption Convention, the Central Adoption Resource Authority (CARA) is tasked with issuing a No
objection certificate (NOC) for Hague ratified countries.

3. Additionally, CARA issues a Conformity Certificate under Article 23 of the Hague Adoption Convention
subsequent to receiving the verification certificate. For countries outside the purview of the Hague Adoption
Convention, CARA issues a support letter subsequent to the verification certificate, providing the necessary
endorsement for the adoption process to proceed smoothly.
Inter-country adoption in India
• Following this new rule, adoptive families can now inform Indian diplomatic missions two weeks in advance
of their intent to travel with the adopted child. During this process, the families must furnish all details of their
residence. Hereby, the Indian missions will then monitor the progress and security of the adopted child,
instead of CARA and other authorities.
Adoption under Common Law
• Adoption Under Common Law
∙ Nature and Legal Framework:
o Adoption in Common Law countries is purely statutory and does not exist in traditional English Common Law.
o Governed by laws such as the Adoption Act 2002 (UK), Adoption and Safe Families Act 1997 (USA).
o Irrevocable and grants full legal rights to the adopted child, including inheritance.
∙ Key Features:
o Adoption is based on the child’s best interests and requires judicial approval.
o Open and closed adoptions exist, allowing varying degrees of biological parental involvement.
o Equal treatment of biological and adopted children under inheritance and parental rights laws.
Adoption under Indian Law
• Adoption Under Indian Law
∙ Hindu Law (Hindu Adoption and Maintenance Act, 1956 - HAMA):
o Recognizes full adoption with permanent legal status.
o Only Hindus can adopt under HAMA.
o Adopted child gains full rights in the adoptive family but loses rights in the biological family.
∙ Muslim, Christian, and Parsi Law:
o No formal recognition of adoption. Instead, guardianship (Kafala system in Islam) is followed.
o Muslims can take a child under their care but cannot grant inheritance rights automatically.
∙ Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act):
o Allows secular adoption for all communities, overriding personal laws.
o Ensures legal status for the adopted child, including inheritance and parental rights.
Key differences between English Law and
Indian Law
Aspect English Law Indian law
Legal basis Purely statutory (Adoption Acts) Based on Hindu Law and Juvenile
Justice Act
Eligibility Open to all individuals Hindus under the Hindu Adoption
and Maintenance Act, others under
the Juvenile Justice Act
Parental Rights Full Parental Rights transferred Full Parental Rights transferred
under the HAMA; limited in other
laws
Inheritance Adopted Child has full rights Rights exist under the HAMA and
the JJ Act. Not under Muslim Law
Adoption type Open and closed adoption available Only full adoption (No open
adoption)