Indian society is woven with the threads of family and marriage. Even the laws abide by the social fabric prevailing in India. But what happens when the threads are damaged? What happens when a baby is born out of wedlock? Is it illegal to have a child without marriage in India? In fact, a guy recently asked an advocate that I got a girl pregnant, what are my rights? The frequently asked questions reflect upon the changing social fabric, and the lack of legal awareness. Hence, here is an attempt to resolve all the queries related to a child born out of a wedlock – whether any one of the parents is married or not.
FAQs on Legality of having a child without Marriage
Is it illegal to be pregnant without marriage?
For a woman to get pregnant while unmarried, it may be a social taboo. However, the laws do not punish a woman for being pregnant without marriage. This strengthens a woman’s bodily autonomy and the right to make decisions for herself. In fact, the law empowers her with abortion rights. But what if an unmarried girl gets pregnant in India and wants to marry later? In that case, she may keep the child and her husband may adopt the child after marriage. She may also choose to give up the child for adoption if she is unable to take the responsibility of such a child. If that happens, all ties with the child are broken for legal purposes.
What is it called when a child is born with unmarried parents?
When a child is born to a couple who is unmarried, the child may be regarded as an illegitimate child. It may be noted that it is not illegal to have a child without marriage. However, the illegitimate status prevents the child from certain rights. It mostly pertains to the succession rights of the child in the inheritance of parents. Legitimacy of children depends upon the personal laws their parents are governed by. As per Section 144 of BNSS, an illegitimate child can seek maintenance from parents.
What happens if you have a baby but are not married?
If both the mother and father of the child are unmarried and they are pregnant, the child born may be illegitimate. In this case, getting married before birth of the child is still an option, to give legitimacy to the child. Custody of the child is a battlefield for unmarried couples, unless one or both of them wish to abandon the child and give it up for adoption. If deciding not to marry and still mutually take care of the child, the father may go for registration of child’s birth certificate with himself as the father, or get a Court order in this regard.
If one or both of them are married to someone else, and pregnant, then things may get a bit complex. Child born to a married woman during marriage is considered to be her husband’s. Hence, legitimacy of the child is out of question. The biological father, if willing to take the child, may find it cumbersome to get custody of his child.
What happens if I have a baby with someone else while married?
If you are married and have a baby with someone else, the laws address the situation differently for men and women. If a married man impregnates another married woman, her husband will be responsible for the child as per Hindu Laws. When asked “If a married man has a child from extramarital affairs, what is the law against him in India” the said man’s wife can get divorce on the grounds of adultery. However, this will be a contested battle where she has to prove adultery as ground for divorce.
Single Unmarried Parents
While the different facets of children born out of an affair have been addressed, there is another facet as well. What does the law lay when a person, who is not married, and not in a romantic affair, wants to have a child without marriage? The adoption laws in India allow single men and women to adopt children. There is no mandate to get married first in order to adopt a child, regardless of whether you are unmarried, divorced, or widowed. Though surrogacy laws are deviant when it comes to a single parents opting for surrogacy to have biological children.
Pregnancy and Age
We have addressed various questions pertaining to the initial question – Is it illegal to have a child without marriage in India? The answer is no, it is not illegal to have a baby. However, it may be noted that if the female or male involved in this process are children themselves, meaning they are below the age of 18 years, things are different. The adult partner may face a lot of trouble under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
Sexual intercourse without consent is a whole different question, and we are assuming the questions here sprout from consensual relations. But the same consent has no value for minors. Adolescent affairs are still under the legal radar, and if the girl is 17 year old pregnant with a guy just 1 day + 18 years, the boy can be booked under POCSO Act. Hence, if you ask “Is it illegal to have a child without marriage” when your partner is a minor, the answer is YES! Regardless of whether you are having a child or not, having sexual relations with a minor is an offence for now, and adolescent love is no exception.
