Sub section (5) of Section 3 of the Act defines the term ‘Minor Children’. According to this provision, sons of native fathers, boys who have not completed age of sixteen years and in the case of daughters of native fathers, girls who have not completed the age of thirteen years.
In these cases, it means unmarried children who have not completed the age of eighteen years. Firstly, it is difficult to comprehend the justification in laying down two different ages of minority.
Secondly, it is not defined as to who are ‘native’ and remains inexplicable as to what turns on it. But surely, below the prescribed age, the child is minor and it may become necessary to find out as to who will have the custody of the children
Children of second marriage while first one was substituting
Section 21 of the Act accords legitimacy to child/children born out of the first marriage to a spouse. Requirements of Section 21 are as under:
(i) Marriage or the Second Marriage, as the case may be, must have been contracted in good faith.
(ii) Second Marriage was annulled on the ground that the spouse of first marriage was living (and not dead). But before the decree of divorce is granted, child/ children is/are conceived.
(iii) The marriage was annulled on the ground of insanity of the other spouse. But before the decree of divorce is granted, child/children is/are conceived.
(iv) The Court granting annulment shall specify in the Decree of annulment that the child/children was/were conceived before the Decree of annulment was granted.
(v) Children born before the Decree of annulment was passed will be treated as legitimate.
(vi) Children born before the Decree of annulment was passed will be entitled to inherit in the same manner as legitimate children would have inherited.
For correctly appreciating the scope of Section 21, it is necessary to bear in mind the fine and thin distinction between ‘no marriage’ and ‘void marriage’. The void marriage pre supposes a marriage, valid or void. But if there were no marriage at all, no question of any such presumption arises. Where admittedly there is no marriage, all legal systems treat the children illegitimate but the tendency of law is to accord legitimacy to the children of void marriage. Section 21, as such, accords legitimacy to the children born out of void marriage and it is silent on the children of ‘no marriage at all’.