CHAPTER
PARENTAGE, LEGITIMACY AND ACKNOWLEDGMENT
1. PARENTAGE—
"MATERNITY AND PATERNITY”
The following is followed to breakdown parentage under Muslim laws:
MATERNITY:
It is easier to establish the mother of the child as it is based on biology, that is, the woman who gave birth to the child is the mother.
PATERNITY:
To establish fatherhood, it required marriage of the man to the mother at the time of birth of the child.
The two concepts of parentage and legitimacy are crucial to understand, as these two concepts result in the foundation of the legal rights and duties of the children and their parents. These concepts are made out of doctrines and principles that have a huge impact on the social and legal status of an individual. Parentage is used for legal relationships that the child has with his/her parents. These relationships are associated with some rights and duties, such as inheritance, maintenance, and guardianship.
PARENTAGE AND LEGITIMACY UNDER MUSLIM LAW
PARENTAGE
Parentage is the relationship between the child and his/her paternal and maternal figure. The concept of parentage is intertwined with the legitimacy of that child. Under Muslim laws, parentage is not a matter of fact.
Therefore, if a man and woman are not married and a child is born, then that child will be considered to be illegitimate.
The concept of parentage for an illegitimate child is different in both Shia and Sunni laws, which are as follows:
SUNNI:
Under Sunni laws, the child will not have a father and will only have a mother who gave him/her birth.
SHIA:
Under Shia laws, in some interpretations, simply knowing the biological mother of a child is not enough; witness testimony or other evidence is sometimes considered to be necessary.
LEGITIMACY
Legitimacy under Muslim law refers to the lawful birth of a child within a valid marriage.
Legitimacy is crucial for determining rights like guardianship and inheritance. Legitimate children are entitled to guardianship and inheritance according to the prescribed rules, and illegitimate children are excluded from these rights.
One of the landmark judgments under this concept is the case of Habibar Rahman Chowdhury vs. Altaf Ali Chowdhury (1918).
In this case, the Calcutta High Court held that it is mentioned in the Muslim law that a son to be legitimate must be the offspring of a man and his wife;
any other offspring is the offspring of an illicit connection (zina) cannot be legitimate.
When the term ‘wife’ comes up, it implies marriage;
on the other hand, it is not necessary that every time someone gets Married, they have the formal wedding ceremony;
therefore, proving that the marriage took place can be difficult sometimes.
Indirectly, the marriage can be proven when the father acknowledges the child as his own, which makes the child legitimate. Hence, this acknowledgement helps as evidence to prove their marriage as well.
It can be seen from this case that it is the core principle under Muslim law that a valid marriage must exist between the parents of the child to prove the legitimacy of the child, and children born without wedlock are not considered legitimate.
PRESUMPTIONS ABOUT LEGITIMACY
Following are the rules regarding the presumption of legitimacy:
TIME OF BIRTH:
A child born within six months of the marriage is presumed to be illegitimate. On the other hand, if the child is born after six months of marriage, the child is presumed to be legitimate.
TIME OF BIRTH AFTER DIVORCE:
Under Shia laws, a child born within 10 months of dissolution of marriage, and in Sunni laws, a child born within 2 years of dissolution of marriage is presumed to be legitimate; anything beyond leads to the presumption of illegitimacy.
LEGITIMACY PRESUMED FROM PRESUMPTIVE MARRIAGE:
Where certain circumstances give rise to the presumption of marriage, they also give rise to the presumption of legitimacy of the child.
In the case of Mohammad Baukar vs. Sharfunnisa, it was held by the Privy Council that the legitimacy or legitimation of a child of Mohammedan parents may properly be presumed or inferred from circumstances without proof or at least any direct proof, either of marriage between the parents or any formal act of legitimation.
INDIRECT MARRIAGE (SHUBA)
Another pertinent concept to understand under this head is the concept of indirect marriage under Muslim law called Shuba. This concept leads to the establishment of legitimacy under certain conditions, even if the formal marriage ceremony has not taken place. The following are the essential elements to establish indirect marriage (shuba):
COHABITATION:
The father and mother of the child have lived together for a while; society has had an impression of them being married.
THE FATHER OF THE CHILD OWNS UP TO THE MOTHER:
The father has to acknowledge the mother as his wife. This can be in any way, like showing that they are married, accepting in writing, or saying it out loud.
FATHER CLAIMS THE CHILD:
This concept is known as Iqrar-e-nasab under Muslim law. This is the same as the father owning up to the mother of the child.
ACKNOWLEDGEMENT OF PATERNITY (IQRAR-E-NASAB)
This concept is known as an acknowledgement of paternity, which means that the father has accepted the child as his own under cases in which the legitimacy of the child is under question.
This acknowledgement alone can establish a valid marriage and also the legitimacy of the child.
The acknowledgement can be expressed or implied.
under circumstances where a third person is proved to be the father of the child, then the acknowledgement will not be considered.
An acknowledgement once made cannot be revoked.
In the case of S. Amanullah Hussain vs. Rajamma (1977),
the plaintiff filed a suit against the defendant Rajamma, wife of the deceased, on the ground that she was only a maidservant of the deceased and was living in the same house with him. She was not a legally wedded wife, nor is the second defendant his son.
In this case, the court held that the marriage can be established by indirect proofs that can be by presumption drawn from certain factors. It may be presumed from prolonged cohabitation or from acknowledgement of legitimacy in favour of a child.
THE FOLLOWING ARE THE CONDITIONS THAT FULFIL ACKNOWLEDGEMENT:
The person making the acknowledgement shall be adult and sane.
The person being acknowledged shall be 12 and a half years old of the person being acknowledged.
A marriage between the acknowledging person and the mother of the child is to be proved.
If the person being acknowledged is an adult, he/she shall accept and confirm the acknowledgement.
The child being acknowledged shall not be known to be the child of another person.
The intention behind acknowledgement shall be to achieve legitimacy.
The effects of acknowledgement can be divided into two parts, which are as follows:
EFFECT FOR THE CHILD:
The child will gain legitimacy out of the acknowledgement, which will lead to a positive effect for him/her, like inheritance rights, which will give the child a legal right to inherit from the father’s estate.
EFFECT ON MOTHER:
This acknowledgement will make the mother a legal wife in cases where the formal marriage did not take place, and the legal wife shall also get inheritance rights from the acknowledgement.
EFFECT ON FATHER:
This acknowledgement cannot be revoked, so this will create a legal bond between the father and the child and will also give legal recognition as the father of the child.
EXPRESSED OR IMPLIED ACKNOWLEDGEMENT
Under Muslim law, acknowledgement of paternity can be either Expressed or implied.
In the scenario of expressed acknowledgement where a father habitually treats and recognizes another person as their child, the child is not required to provide further proof. This behaviour of the father itself creates a strong presumption of legitimacy.
Another important factor under acknowledgement is that the person who is acknowledging a child shall be aware of the effects of acknowledgement.
In the case of Muhammad Azmat vs. Lalli Begum (1831),
it was held by the Privy Council that acknowledgement made in front of a single person is also admissible in the court of law to establish a child’s legitimacy.
In case the father dies, the sole testimony of the person in front of whom the father has acknowledged his child will be considered to be crucial evidence to prove the same.
DIFFERENCE BETWEEN ACKNOWLEDGEMENT AND ADOPTION
In adoption, the child being adopted is known to be the son of some other person, while on the other hand, one of the essential ingredients of acknowledgement is that the child being acknowledged shall not be known to be the child of some other person.
Acknowledgement of paternity under Muslim law is the nearest approach to adoption, but the two processes of derivation are quite different, and their comparison will give a clearer understanding of the concepts.
BASIS
Known to be
How it is established
Renouncement
Connection
The motive behind the act
ADOPTION
It is the process in which the child being adopted is known to be the child of another person.
It is established by a legal adoption from the natural parents to the adoptive parent.
Renouncing the natural family is the essential ingredient of a valid adoption.
It has no connection between the natural descent of the child being adopted and the adoptive father.
The motive behind adoption can be religious or spiritual.
ACKNOWLEDGEMENT
The acknowledgement proceeds on the basis of paternity. It is essential for acknowledgement that the child should not be proven to be the child of another person.
To establish acknowledgement, there shall not be any known father of the child being acknowledged.
No such renouncement is required in acknowledgement.
It relates to the theory of actual descent of the child being acknowledged by legitimate means.
There is no such motive.
SECTION 116 OF BHARATIYA SAKSHYA ADHINIYAM, 2023
(formerly Section 112 of the Indian Evidence Act, 1872)
According to Section 116 of if a child is born within 280 days of dissolution of marriage, then the child will be considered to be legitimate, provided that the mother remains unmarried during that period.
THUS:
A child born after 6 months from the date of marriage union but within 280 days of the termination of the marriage is legitimate under both systems, subject to proof of non-access under the Indian Evidence Act.
Under the Indian Evidence Act, a child will be deemed to be legitimate even if it is born on the next day of the marriage. But if it is shown that the parents have no access to each other, such presumptions will not be made.
There are such contradictions between the Muslim law on legitimacy and the Indian Evidence Act, but in these situations, it is important to understand which law shall prevail.
The jurists are divided on this point. Jurists like D.F. Mulla and Tyabji are of the view that the Evidence Act shall prevail upon the Muslim law, but according to Ameer Ali, the Evidence Act embodies the English rule of law, and as a result, it cannot be applied to Muslim law.
but in the end the aim would be of serving justice.
ILLEGITIMACY
When the legitimacy of the child born cannot be proved, the child is considered to be illegitimate.
There are many hardships that are faced by the illegitimate child, as he/she will not get the inheritance rights, which can impact their life.
Another difficulty is faced by the mother of the child, as she has to face a harsh punishment for adultery (Zina).
It can further be broken down into Sunni and Shia laws. Under Sunni laws, the illegitimate child can inherit from his/her mother; on the other hand, under Shia laws, illegitimacy acts as a factor to complete exclusion; in no circumstance, the illegitimate child under Shia laws can get the right to inheritance.
Another important consideration for an illegitimate child is his/her right to maintenance. Muslim laws broadly do not confer any mandatory obligation on either of the parents of the illegitimate child, but Sunni laws do consider an obligation to maintain the child until he/she turns 7, but Shia laws do not have such obligations.
Under such circumstances, Section 125 of the Criminal Procedure Code, 1973 (now Section 144 of BNSS), comes into play, which states that the father of an illegitimate child is obligated to maintain him/her.
