Marriage is the unique bond between two people that links them together emotionally, spiritually and sexually in an enduring union based on common values, love and commitment. The circumstances that contribute to the fracturing of the intimate bond, i.e., an extra-marital relation, are diverse but most often involve transferring of emotional energy that was once directed to the marital harmony and for the family and children to other sources such as career and outside interests and friends. Under these conditions people may re-connect emotionally and spiritually with someone outside of their relationship by fulfilling ones need for acceptance and understanding. Extra marital relationships such as these begin benignly but may later evolve by becoming sexual posing a serious threat to the primary marital relationship.
1. Impact Of Extra-Marital Relation On The Legal Marriage
Adultery is a ground for divorce under Section 13(1)(i) of Hindu Marriage Act, section 27(1)(a) of Special Marriage Act, Section 32 (d) of Parsi Marriage and Divorce Act,1936 and under Section 10 of the Indian Divorce Act .The ground for getting a decree for divorce on the grounds of adultery is provided as :“The Respondent has after solemnization of marriage, had voluntary sexual intercourse with any person other than his or her spouse.” In other words, the spouse who engages in extra-marital intercourse is guilty of adultery. Under the Dissolution of Muslim Marriages Act, adultery as such is not a ground for divorce, but if the husband “associates with women of evil repute or leads an infamous life,” it amounts to cruelty to wife and she can sue for divorce on that ground. This seems sometimes akin to living in adultery. But none of these enactments, except the Parsi Marriage and Divorce Act, confers any such corresponding right on the husband to dissolution of marriage for extra-marital sexual relations maintained by the wife.
In Shivakumar v Premavathi it was held that stamping the child as an outcome an adulterous relation or charging a woman for extramarital intercourse is a serious thing with legal consequences. No woman can be blamed for an adulterous relation relationship and no child can be called as illegitimate unless there is conclusive evidence in support of such conclusions. The case of Sunil Eknath Trambake v Leelavati Sunil Trambake clarified that in the matter of proving the paternity of a child, a DNA test can be ordered only in exceptional and deserving cases if it is in the interest of the child. The charge of adultery is serious as it casts aspersions on the character of the spouse affecting his/her reputation in the society besides raising question marks in terms of the parentage of the child delivered by the wife, therefore not only the charges of adultery should be specific but also should be established in all probabilities. The proceedings for adultery, under the Hindu Marriage Act, are in the nature of quasi-criminal, as such, higher standard of proof than mere preponderance of probabilities is required as was held in Partap v Veena
2. Importance Of Parental Fidelity And Family Structure.
Obviously, the most important post-divorce problem with which the individual and society are most vitally concerned is the problem of finding adequate solutions to matters concerning custody, education, maintenance of, and access to children. These are the matters which affect significantly the children and parents emotionally and socially .The Supreme Court gave a judicial message in the case of Gaurav Jain v Union of India that children are innocent and abandoning of the child by one of the parents, excluding a good foundation of life for them, is a crime against humanity. In Ninia Baehr v Lawrence H.Mike the Supreme Court of Hawaii stated that: The father and the mother offer different and complementary cognitive and emotional organizations of the world to the infant. An intact family environment consisting of a child and his or her mother and father presents a less burdened environment for the development of a happy, healthy and well adjusted child .The benefit to children which come from being raised by their mother and father are maximum in an intact and relatively stress free home.”
The importance of parental fidelity to the psychological well-being of children cannot be underestimated. While an affair is taking place children sense that the parent is expending emotional energy outside the family. As a result the children may become anxious or frightened, or they may sense rejection and feel they have done something wrong. Moreover experts found, such children are prone to have affairs themselves when they marry. The child, eventually, after witnessing the hostile environment at home and the parental animosity resulting from the extra-marital of either of the parents, breaks down under the strain of conflict. The child’s distress may take the form of school related problems, anxiety, depression, bullying, victimization and sometimes even health related illness.
3. Divorce: Psychological Impact On The Children.
Actually, children's psychological reactions to their parents' divorce vary in degree dependent on three factors:
(1) the quality of their relationship with each of their parents before the separation,
(2) the intensity and duration of the parental conflict, and
(3) the parents' ability to focus on the needs of children in their divorce. "Divorce is deceptive. Legally it is a single event, but psychologically it is a chain sometimes a never-ending chain¬ of events, relocations, and radically shifting relationships strung through time, a process that forever changes the lives of the people involved."
Attachment theory of divorce: Children usually lose a degree of contact with one of their very few attachment figures when a divorce occurs. It is a confusing and stressful time for children, regardless of whether the divorce was amicable or not. Poor school performance, low self-esteem, behavior problems, distress and adjustment difficulties are associated with divorce. In adolescents from divorced families they noted more instances of delinquent behavior, early sex activity and continued academic issues. There are many factors that may play into how children's attachments are altered after a divorce, gender and age being the two most documented variables. It is also important to discuss the outcome of divorce and how it affects children's attachment style. Often times, divorces end in ugly custody battles between the parents. During this time, the parents being terribly selfish as to who is most responsible often forget they are being observed at all times. Attachment style can be even more afflicted by court battles in which the child has no control over whom he or she goes with. This serves to alter attachment style negatively. This could lead to negative attachment style resulting in no attachment style at all.
4. Impact Of Extra-Marital Relation On Children Born Outside The Wedlock.
Despite international and national conventions prohibiting discrimination against any child and imposing responsibilities on parents, society and state to protect it in every manner, an illegitimate child born out of an extra-marital relation is still exposed to enormous social, emotional and legal deprivation .While the parents can foresee the consequences of their socially and legally disapproved alliance in the form of extra-marital relation, the child has no choice in the matter. . The sharing of the physical company and properties between children born outside wedlock would be at the expense of the family, and thus the peace and stability of the marriage would be threatened. Justice Douglas in 1968 stated that “ illegitimate children are not “non-persons”. They are humans and have their being.”
4.1 presumption of legitimacy
Under the law there is a presumption in favor of evidence proving legitimacy of a child born during the wedlock. The rule laid down in Russel v Russel was followed in the case of Premchand Hira v Bai Gopal ,was that no evidence can be adduced by spouses that no intercourse had taken place between them if the effect of such evidence would be do bastardize the child. The force of this presumption in English law is indicated by the remark “…we may almost say that every child born to a married woman is in law the legitimate child of her husband.”
In India this presumption is statutorily recognized under Section 112 of the Evidence Act 1872 which lays down as a general rule of presumption that a child born during the subsistence of a legal marriage or within 280 days after its dissolution is a legitimate child unless non-access between the parties at the relevant time can be shown. In a recent judgment of the Supreme Court in the case of Goutum Kundu v State of West Bengal where in an application was filed by the wife for maintenance for herself and her child, the husband denied that he was the father and made an application to the court for blood group test of the child to determine the child’s Paternity. The same was not granted. It was held that under Section 112 of the Evidence Act, the birth of a child during the continuance of the valid marriage is conclusive proof of the child’s legitimacy. The blood-grouping test was an attempt made to prove that the child born to the wife couldn’t be the husband’s and as a conclusion of this the wife had committed adultery. Thus, if the husband has ‘A’ blood group and the wife has ‘B’ blood group then the child will have either ‘A’ or ‘B’ or ‘AB’ blood group and if the child has ‘C’ blood group then this would prove adultery on grounds of this circumstantial evidence. . Also, in W v. W, a decree of divorce was passed in favor of the husband as the white wife had given birth to a child with Negroid feature but the Court did not allow for the blood test as they were of the opinion that it would bastardize the child.
4.2 Legitimation under Muslim law
Muslim law does not recognize putative father for any purpose. It clings to the concept of “filius nullis”. Under the islamic law conception during lawful wedlock determines legitimacy of the child .There is no process recognised under the muslim law which confers legitimacy on an illegitimate child. However mohammadans have adopted measures like “acknowledgement of paternity” which are preventive measures to save the children from being bastardised. Mohammadan Law has made a special provision for conferring legitimacy on or rather recognizing the legitimacy of a child, whether a son or daughter by the doctrine of acknowledgement of ikrar . It is an acknowledgement of paternity by his putative father. The person acknowledged must not be the off-spring of zina , which is adultery in Muslim law, as he would be if his mother could not possibly have been the lawful wife of the acknowledger at any time when he could have been begotten, as where the mother was at that time the wife of another man .Adoption or any equivalent of the same is not recognized under Mohammedan law.
5. Status Of The Illegitimate Child Born Out Of The Extra-Marital Relation
Lord Ch .J. King in Marchioness of Annadale v Harris :-“If a man says he, does mislead an innocent woman, it is both reason and justice that he should make her reparation. The case is stronger in respect of an innocent child, when the father has occasioned to be brought into the world in this shameful manner, and for whom, in justice he ought to provide. ”The Supreme Court in Gaurav Jain v Union of India has categorically stated that the children have the rights of equality and opportunity, dignity and care, protection and rehabilitation by the society with both hands open to bring them into the mainstream of social life without pre-stigma affixed on them for no fault of his/her.
5.1 Guardianship :
The Hindu Minority and Guardianship Act ,1956 under Section 6(a) provides that while in the case of a minor boy or a minor unmarried girl it is the father who is the natural guardian and the mother comes only after the father, however under Section 6 (b) the order reverses incase of illegitimate children; the mother is the natural guardian and the father comes only after her. An illegitimate child does not get the father’s name. Perhaps there is a rational distinction between a child born into a family and one born outside and since such child would normally not be living with the father but with the mother, it might sound logical that the child should be identifiable with the mother; and laws on guardianship and adoption fall in line with this reasoning .However from the child’s perspective discrimination and bias is evident as in a patriarchal set up like ours, child can be singled out as having been born out of a wedlock.
5.2.1 Secular law: Under the provisions of the Code of Criminal Procedure ,1973 which is applicable to all communities irrespective of caste and religion, every child who is unable to maintain itself is entitled to be maintained. Though the word “illegitimate” is specifically mentioned there is no discrimination in the entitlement on the basis of marital status of the parents of the child. The main provision regarding grant of maintenance is contained in Section 125 of the Code. A Magistrate of the first class may, upon proof of such neglect or refusal, order, such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct." Apart from this uniform and secular legislation, there are provisions for maintenance of children under the personal law statutes as well.
5.2.2 Hindu law: Under the Section 20 of the Hindu Adoptions and Maintenance Act ,1956, minor children-whether legitimate or illegitimate, are entitled to be maintained by their father or mother. In K.M Adam v. Gopala Krishnan the Court imposed an obligation on the Muslim father to maintain and support his illegitimate Hindu child born to a Hindu woman. There was no marriage and it was argued on behalf of the father that neither under personal law nor under the provisions of the Hindu adoption and maintenance Act he was entitled to maintain the child, however the child was considered to be a Hindu as one of the parent ,i.e. The mother is a Hindu. Illegitimate sons and daughters are “dependants” under Section 21 of the Act and are entitled to get maintenance from the estate of their putative father under Section 22 – in case of a son till he is a minor and incase of a daughter ,till she remains unmarried.
5.2.3 Muslim law: Application of maintenance to an illegitimate child is strictly prohibited because of the concept of “nullis filuis”. In Pavitri v Katheesumma a question arose on the maintenance of an illegitimate daughter , born of a mohammedan male and a hindu woman, against his putative father and his assets. The court held that the mohammedan law imposes no burden of maintenance of an illegitimate child on the putative father. An illegitimate child is not entitled to be maintained by either parents under the shia law and only from mother under the hanafi law. No maintenance was claimed under Section 125 of the Criminal Procedure Code. However in Nafees Ara v Asif Sadat Ali Khan the petition was filed under Section 488 of the Criminal Procedure Code of 1898 claiming right of maintenance for an illegitimate child. In this case the court after referring to cases held that the muslim law does not make any specific provision provide for granting or prohibiting the grant of maintenance to an illegitimate child against the father, does not mean that the civil or criminal court have no jurisdiction to grant maintenance. Provisions of the Criminal Procedure Code are a part of the general law of the land which in the absence of any contradictory provision under the mohammedan law is binding on the Muslims as on other citizens of the country.
5.2.4 Christian law: Even though the codified law of the Christians of India does not speak of maintenance of illegitimate children, the secular law governing the country's masses has made it compulsory for parents of illegitimate children to support them (if not the successors of the illegitimate children) in the form of a monthly amount that is to be fixed by the Magistrate. A Christian child is bound to be maintained as per the secular law of the land as provided by the Code of Criminal Procedure, 1973. The main provision regarding grant of maintenance is contained in Section 125 of the Criminal Procedure Code.
Statutory adoption provisions exist only in the Hindu law under the Hindu Adoptions and Maintenance act,1956. Prior to this act only sons could be adopted and illegitimate sons could not be adopted. The act imposes no such restrictions. Section 2, which is applicable clause however specifically distinguishes between a legitimate and an illegitimate child and provides that in case of an illegitimate child the mother can give the child away in adoption without the consent of her paramour. In case of a legitimate child the primary right of giving in adoption is the fathers and the mother cannot exercise such right during the lifetime of the father unless he is disqualified as laid down under Section 8(c) of the abovementioned Act. In the case of the giving of an illegitimate child by his mother although Hindu law never considered an illegitimate child as filius nullius , the relationship of such a child with the father (except for maintenance) was not recognized but instead the mother of such a child was recognized as seen in Mayana v Littram .Obviously the mother should have been recognized to have the power to give the child in adoption but our courts have rendered conflicting decisions. in Appya Shettya Talwar v Ramnakka Apya Talwar , the Bombay HC stated that since the two mandatory conditions i.e. the child given in adoption by a woman was her husband's child and the husband was incapable of giving assent, could not be fulfilled in the case of an illegitimate child, adoption of such a child was not possible and if made, it was void. Since in the definition of “father”, putative father is not included, the illegitimate child has no father and thus even where a putative father is known and acknowledges the child, he has no role to play in the adoption of such a child. Neither he himself can give the child in adoption nor can he prevent the mother from giving away the child in adoption.
The child, eventually, after witnessing the hostile environment at home and the parental animosity resulting from the extra-marital of either of the parents, breaks down under the strain of conflict. The child’s distress may take the form of school related problems, anxiety, depression, bullying, victimization and sometimes even health related illness. Eventually, the parents must be brought along to understand that their antagonistic tug of war is the toxicity hurting their child. Finally the child needs to be brought into a session with both the parents where they demonstrate their maturity by co-operating for the child’s mental development and growth by giving him/her the necessary family environment and equal love, care and support from both the parents thus to extinguish any insecurities or mental pressure the child might be undergoing. Apart from the legal recognition of the difference in status of a child born within and outside wedlock, it is the societal rejection and practical problems which add to the hardship of such children. These can be witnessed in several matters like-birth registration, name, school admission, marriage and so on. Under article 7(1) of the 1989 convention on Child Rights states that, “the child shall be registered immediately after birth and shall have the right to a name, the right to acquire a nationality and as far as possible, the right to know and be cared by his or her parents.”
However in the case of children whose paternity is unknown or whose parents are not married, difficult situations arise in terms of emotional security or property rights or social esteem. The problem has to be tackled on two fronts- firstly by discouraging illegitimate births and secondly by removing social prejudices and legal inequalities. The fear of being saddled with the responsibilities of such children would deter many adults from indulging in illicit sexual cohabitation. The factual position however is, that the law absolves the father of his duties towards his illegitimate offspring as is the case of a child born out of an extra-marital relation and thus correspondingly deprives the child of several rights – including the right to his company. The primary guardian of an illegitimate child is the mother as against the father in case of a legitimate child. The objection is not to the mother’s right but to the different legislative provisions under the personal laws of India discriminating against the child born in or outside the wedlock. However the sole factor which should be taken into consideration is the best interest of the child rather than the status of the legal relationship of the parents.