What is the difference between divorce and Judicial separation under Hindu Marriage Act?

Legitimacy of children:

Section 16 of the Act provides for legitimacy of void and voidable marriage.

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The section, however, is silent as to what-children are legiti­mate. It only refers to the child “who would have been the legitimate child of parties to the marriage if it had not been dissolved.” That question, therefore, will have to be decided by reference to Section 112 of the Indian Evidence Act which reads as under:

(1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who 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 or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted is respect of avoidable marriage under section 11, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person other than parents in any case where but for the possessing of this Act such child would have been incapable of possessing or ac­quiring any such rights by reason of his not being legitimate child of his parent.

Birth during marriage conclusive proof of legitimacy:

The fact that any person ” who 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 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 beqotton. [Section 112. Indian Evidence Act].

The legitimacy of a child therefore requires it as a prerequisite that he must be born out of a valid marriage.

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