Paternity is as essential as maternity for the child's growth, emotional well-being, and psychological development. However, paternity based on marital presumptions for ascribing parental rights and responsibilities to men is a clear violation of equitable doctrines. When the law identifies only a man in a matrimonial relationship as the ‘legal’ father of the child born during the subsistence of that relationship, it restricts and excludes all other forms of relationship which are not in conformity with the traditional concept of marriage, consequently, de-recognizing paternity in such relationships. This presumption, therefore, had created indifferences and inequalities within and between genders and led to the detrimental classification of children as ‘legitimates’ and ‘illegitimates’.
Post-World War II, there had been a severe revision of rights in general, which also revolutionised the status of child rights at the international and national levels, presumably due to the late but critical realisation that children are the nation's future. With the establishment of the Convention on the Rights of the Child, the long-battled philosophical question of child’s rights was concluded, highlighting that children are entitled to equal or more special rights to adults. The Convention also established equality and equal protection for all children irrespective of the nature and status of their birth. Before and after the formal adoption of CRC, many legal systems across the globe had revised their laws on parentage and incorporated or upgraded the basic principles of CRC in their domestic application. The mandate of CRC is to give the child's best interest paramount importance in all the matters connected to them, especially when there is a conflict of interest between other stakeholders- parents or cohabiting partners.
Although India is a signatory to CRC, laws in India still haven’t formally recognised the equality and equal status of non-marital children and thus eluded the ‘best interest of the child’ principle laid down under the Convention. Consequently, non-marital children in India, even today, remain an invisible group in the eyes of the law. Any discussion of their rights begins and ends with their entitlements in the putative father’s self-acquired or ancestral properties. Similarly, there had been hardly any deliberation or efforts to investigate the socio-legal status and rights of non-marital children and the effect of classifying them as ‘illegitimates’ under the laws. This Article, therefore, critiques the mundane attitude of laws founded on parents’ marital status in identifying, establishing and assigning paternity and legitimacy to children in non-marital families.