LEGITIMACY, PARENTAGE AND ACKNOWLEDGEMENT UNDER MUSLIM LAW

In Muslim Law Parentage is based on lawful marriage. Parentage (Rishta) is a relation of parents to their children. Muslim Law insists on the existence of valid marriage between begetter and the bearer of the child at the time of its conception. In Muslim Law a person born out of valid and irregular marriage is legitimate child of the spouses. Legitimacy is based on Parentage; both are interdependent to each other. When the paternity is established, its legitimacy is also established.

PARENTAGE (RISHTA): PATERNITY AND MATERNITY:

Paternity is the relationship between a child and his paternal figure, i.e., his father. Parentage under Muslim law is not a matter of fact. The only way to establish paternity is by marriage to the mother of the child. So as per Islamic law, maternity is by fact but paternity can only be by marriage. Maternity is a legal relation between mother and a child. Maternity is a matter of fact that mother has actually has given birth to the child. Parentage id important to give effect to certain rights and obligation regarding maintenance, guardianship and Inheritance. If there is no marriage between the mother and the father of the child, then such a child is illegitimate. And as per Sunni Law, such child has no paternity. And according to Shia Law, such a child has neither paternity nor maternity. By conclusion parentage under Muslim law is only available to a legitimate child.

LEGITIMACY UNDER MUSLIM LAW:

The legitimacy and parentage under Muslim law are closely related to marriage. So, child will be considered legitimate only if he is born in lawful wedlock. This means that the father (begetter) and the mother (bearer) of the child should have been in a valid lawful marriage at the time of conception. Then the child will be legitimate child with established paternity and maternity. Hence under Muslim law, only direct or indirect marriage between the begetter and the bearer of a child can establish the legitimacy of children. If there is not a lawful and direct marriage between the said people, then an indirect marriage can be established if,

  • There is cohabitation of the father and the mother
  • The father acknowledges the mother as his wife
  • The father acknowledges the child as his own. So, if the marriage cannot be proven between the father and mother, or there is a doubt as to the paternity of the child, the father can choose to acknowledge the child as his own. This is true for both sons and daughters. It is also known as ikrar-e-nasab. Also, such acknowledgement need not be expressed , it can also be implied by conduct.
  • A person born in lawful marriage is said to be the legitimate child of the spouses. So, the main point in case of the legitimacy of a child is the marriage between his or her parents.

LAWS OF LEGITIMACY (INDIAN EVIDENCE ACT, 1872):

In India, the legitimacy of any child no matter his religion is decided by the Indian Evidence Act, 1872. This act states that a child will be legitimate if,

  1. is born in the continuance of a valid marriage between the mother of the child and any other man (need not be the father of the child)
  2. Is born after 280 days of the dissolution of the marriage as long as the mother did not remarry in such a time.

ACKNOWLEDGEMENT OF PATERNITY (IKRAR-E-NASAB):

This is a special mode prescribed by Muhammadan law for establishing the legitimacy of a child and the marriage of its mother. Since a marriage among Muslims may be constituted without any ceremony, the existence of a marriage in a particular case may be an open question. If no direct proof of such marriage is available, indirect proof may be relied upon. Acknowledgment of legitimacy of a child is one of the kinds of indirect proof. Thus, under certain conditions, if a Muslim acknowledges a child to be his legitimate child, the paternity of that child is established in him. But the doctrine applies only to cases where the fact of an alleged marriage is an uncertainty. It cannot be availed of to legitimize a child who is known to be illegitimate[1]. The doctrine of legitimacy by acknowledgement proceeds entirely upon an assumption of legitimacy and establishment of legitimacy by the force of such acknowledgement.

CONDITIONS OF A VALID ACKNOWLEDGEMENT OF LEGITIMACY:

Muhammadan law prescribes a special mode of establishing the legitimacy of a child. When a man either expressly acknowledges, or treats in a manner tantamount to acknowledgement of, another as his lawful child, the paternity of that child will be established in the man, provided that the following seven conditions are fulfilled:

  • The acknowledger must possess the legal capacity for entering into a valid contract.
  • The acknowledgement must not be merely of sonship, but of legitimate sonship.
  • The ages of the acknowledger and the acknowledged must be such as to admit of the relation of parentage, i.e., the acknowledger must be at least twelve-and-a-half years older than the person acknowledged.
  • The person to be acknowledged must not be the offspring of intercourse which would be punishable under Muhammadan law, e.g., adultery, ancestor fornication.
  • The parentage of the person to be acknowledged must not be unknown, i.e., the child to be acknowledged must be known to be the child of some other person.

In Rashid Ahmed’s case[2], A, a Muslim, divorced his wife B, by three pronouncements of talaq, but afterwards, continued to cohabit with her, and to treat her as his wife for fifteen years. During this period, five children were born to them, all of whom he treated as his legitimate children. However, the Privy Council held that the children were illegitimate. In this case of divorce by three pronouncements, before A and В could remarry, В should have been married to another man in the interval and divorced by that man. As there was no proof of such marriage with another man and a divorce by him, a presumption of remarriage between A and В could not be raised, and hence, the children were held to be illegitimate, and could not inherit from their father. The observations of the Allahabad High Court on acknowledgement of paternity in Muhammad Allahabad v. Muhammad Ismail (1888-10- All. 289) are relevant. In that case, the Court observed: “The Muhammadan law of acknowledgement of parentage, with its legitimating effect, has no reference whatsoever to cases in which the illegitimacy of the child is proved and established, either by reason of a lawful union between the parents of the child being impossible (as in the case of an incestuous intercourse or an adulterous connection), or by reason of a marriage, necessary to render the child legitimate, being disproved.”

CONCLUSION:

The doctrine of legitimacy by acknowledgement proceeds entirely upon an assumption of legitimacy and establishment of legitimacy by the force of such acknowledgement. This doctrine relates only to cases where either the fact of the marriage itself or the exact time of its occurrence with reference to the legitimacy of the acknowledged child is not proved in the sense of law, as distinguished from disproved. In other words, the doctrine applies only to cases of uncertainty as to legitimacy, and in such cases, acknowledgement has its effect, but that effect always proceeds upon the assumption of a lawful union between the parents of the acknowledged child.

REFERNCES:


[1] Habibur Rehman Chaudhary vs Syed Atlaf Ali Chaudhary, 49 Ind Cas 545

[2] Rashid Ahmed v. Anisa Khatun, (1932) 34 Bom L.R. 475 PC. 59 I.A. 21

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