Acknowledgement of Paternity under Muslim Law

Acknowledgement of Paternity under Muslim Law

Parentage in Muslim Law

Parentage is the relation of parents with their children. The parentage includes maternity and paternity. Maternity is the legal relationship between the mother and the child where as paternity is the legal relationship between the father and the child. Both maternity and paternity is related to legitimacy of child. The concept of legitimacy of children is the direct outcome on the basis of the  concept of marriage. The rule is that the children born within the lawful wedlock are legitimate children of the man and his wife. As a corollary to this, the children born outside the lawful wedlock are illegitimate.

Maternity in Muslim Law

In Muslim law, maternity of a child is established in the woman who gives birth to the child, irrespective of the fact whether she is married or unmarried or child is outcome of adultery (Zina).

  • Under Sunni law:

The woman who is giving birth to a child will be his/her mother irrespective of whether the birth was the result of a valid marriage or adultery (Zina). The child is entitled to inherit from his/her mother. So it can be said that under Sunni Law, an illegitimate child has his/her maternity in the woman who gave birth.

  • Under Shia law:

The child who is born out of lawful marriage only that woman will be his/ her mother. So only birth is not sufficient to establish maternity under Shia law, it has to be also proved that the birth was a result of a lawful marriage. All other outcome will be treated as illegitimate child. So the illegitimate child under Shia law can inherit neither from father or mother.

Paternity in Muslim Law

In Muslim law, paternity of a child is established in a man only when the child is a legitimate child i.e. the father-child relationship is entirely based on the lawfulness of marriage between both the parents. So it can be said that a child will be legitimate only when the marriage is a valid (Sahih

) or irregular (Fasid) but if the marriage is void, no father-child relationship comes into existence. Under the Muslim laws a child to be legitimate:-

  • must be born during lawful wedlock and
  • must be conceived during the lawful wedlock
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Habibur Rahman Chowdhari v Altaf Ali Chowdhari[1], to state expressly:- “a son to be legitimate must be the offspring of a person and his wife or a person and his slave, any other offspring is the offspring of the ‘Zina‘, that is, illicit connection, and can’t be legitimate.”

So the marriage between the parents of a child may be established by:

  1. Direct proof of a marriage
  2. Indirect proof of a marriage
  • By the presumption of prolonged and continuous cohabitation,
  • By acknowledgement of the child as one’s legitimate child.
  1. Legitimacy by direct proof of marriage:

When a valid marriage between the parents of a child is established, then the child born of such marriage will be presumed to be legitimate. The Muslim law givers laid down the following three rules of presumption of paternity when the director of marriage between the man and the mother of the child is available:

  1. A child born within six months after the marriage: that child will be treated as illegitimate unless the father acknowledges the child.
  2. A child born after six months from the date of marriage: that child will be presumed as a legitimate child unless the father disclaims the child.
  3. A child born after the dissolution of marriage is legitimate-
    Under Shia Law, if born within 10 months.
    b. Under Hanafi Law, if born within 2 years.
    c. Under Shefai and Maliki, if born within 4 years.

Ø Legitimacy When Conclusively Presumed:

The statutory law in the Indian judiciary system with regard to the presumption of legitimacy has been inscribed under section 112 of the Indian Evidence Act, 1872. This section raises a legal presumption for the legitimacy of a child, under two circumstances:-

  • When the child is born during the continuance of valid marriage;
  • With 280 days of the dissolution of marriage, provided the mother remains unmarried.

The fact that the child is born between these two periods as contemplated above, is taken into account to be conclusive proof of legitimacy in letters of section 112 of the Indian Evidence Act, 1872. The Evidence Act supersedes the rule of Muslim law. The question arises whether the provision of the Indian Evidence Act supersedes the provisions of Muslim law. Opinions are divided, but the balance of authority remains in favour of the Indian Evidence Act.

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In Sibt Mohammad v Mohammad[2] It was held by the HC that Evidence is applicable to Muslims also even though it supersedes the Muslim Law.

In Ismail Ahmad v Momin Bibi[3] husband got married to his wife’s sister which is irregular marriage therefore the child is also illegitimate. It was held by Oudh court that no doubt Evidence is applicable to Muslims but it is not applicable to irregular marriage of Muslim

In Abdul Rahemankutty v Aisha Beevi[4] a child is begotten of a marriage which is invalid the remedy of presumption under 112 of IEA cannot be invoked. It was held that for the application of section 112 for IEA that is there must be a valid marriage and no such presumption of legitimacy of the child can be raised under section 112 of IEA if the marriage is not valid.

  1. Legitimacy by indirect proof of marriage:

  • By prolonged presumption of marriage:

The prolonged and continued cohabitation raises a presumption of marriage and once a marriage is presumed to be valid, children born of such a marriage are also legitimate.

In Md. Bauker v Shurfoonissa[5] In a old case the privy council said “the legitimacy of a child of Mohammedan parents may properly be presumed or inferred from the circumstances without proof, or at least, without any direct proof, of marriage between the parents, or of any formal act of legitimacy.”

  • By acknowledgment of a child:

The acknowledgement of paternity under Muslim law is in the nature of declaration by the father that a child is his legitimate offspring and it is not a process of legitimating of an illegitimate child

The acknowledgement of paternity may be express or implied

The acknowledgement must not be of son ship alone but must be of legitimate son ship. Such acknowledgement must be well intended and not have been casually made with any intention to confirm legitimatimacy. Therefore intention to confirm legitimacy plays a very important role in acknowledgement.

Essentials of acknowledgement:

  • Unknown paternity: Other than acknowledger there should be no father. The person who is claiming the child to be his son should be his legitimate father. The acknowledged by the acknowledger should not be known to be the child of another.
  • Must not be illegitimate: The child which is acknowledged must be a legitimate child and not an outcome of adultery (zina) or of a void marriage. This process cannot be used to for legitimating of an illegitimate child.
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In Sadik Husainkhan v Hashim Ali khan[6] Privy Council rejected the acknowledgement because the child which was acknowledged was born out of adultery.

In Rashid Ahmad v Anisa Khatun[7]

the child acknowledged was the issue of marriage between the divorced people. The husband had repudiated the marriage in talak-ul-bidaa and no intermediate marriage and divorce of the woman took place. Thus marriage was void.

  • Child must verify it: The child who is acknowledged must not be known as a child of another. The acknowledgement must not be repudiated by the acknowledge person. Under Muslim law a person who has attained the age of discretion, which is ability to understand the transaction, has a right to repudiate acknowledgement. For the validity of acknowledgement of paternity in no confirmation by the person acknowledged is necessary.
  • Nothing to rebut presumption: The age of acknowledger and the acknowledged person should be such that appeared to be the father and the child. There appears to be some authority for the view that acknowledger should be at least 12 and half years senior to the person acknowledged. There must be adequate difference between their age.

Effects of Acknowledgement

Acknowledgement produces all the legal effect of a natural paternity and vests in the child the right of inheriting from the acknowledger.

In the case of wife, which means the mother of an acknowledged son, it has the effect of giving her the status of legal wife and hence the right of maintenance and inheritance.

 

[1] 1921 48 IA 44

[2] (1926) 48 All 625

[3] 29 October  1940

[4] (1960) A. Ker 101

[5] (1960) MIA 136

[6] (1916) ILR 38 All 627

[7] AIR 1932 PC 25

Author: Ridhi Gupta,
Panjab university and 3rd year

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