Acknowledgement of Paternity Under Muslim Law

What is paternity?

  • Paternity is the legal relationship between the father and his child. The term ‘parentage’ is generally used for the legal relationship which a child has with the parents. These legal relationships are associated with certain rights and duties, such as mutual rights of inheritance, maintenance, and guardianship. A child gains paternity by either of the two ways:
  • Marriage:
    It may be valid (Sahih), or irregular (fasid), but not void (batil).
  • Acknowledgment :(in certain circumstances)
    If a child is born at a time when the parents are not married or a woman bears in her womb, the child of a man but before his/her birth, she marries another man then the paternity needs to be recognized by law and the father should acknowledge the child legally. Once this acknowledgment is done, he can be recognized as the legal father of the child and the child gets a legal identity as well as legal rights.
  • An issue of void marriage has neither paternity before nor maternity under Shia Law . That is , under Shia Law , an illegitimate child is a filius nullius i.e. a relation of none. The illegitimate child can inherit neither from father or mother .
  • Under Sunni Law , an illegitimate child has only maternity and no paternity i.e. the maternity and paternity of a child begotten in consequence of adultery merge together in the mother of child. Under Sunni Law , the maternity of a child is established in the woman who gives birth to the child irrespective of whether the birth was the result of a wedlock or Zina( adultery) .
  • However , under Shia law , mere birth is not sufficient to establish maternity ; it has also to be also proved that the birth was a result of a lawful marriage .
  • If a man commits Zina with a woman and child is born , it is considered to be the child of its mother only and inherits from her and her relations under Sunni Law . But the man is not considered to be the father of the child , for paternity is established only by marriage , nor is the child in law the child of the man ; it is illegitimate and not entitled to inherit from him.
  • Afzal first marries Mariyam and then marries her sister’s daughter Zia , within a week of her getting a divorce from her former husband. Zia gives birth to a child after one month from her marriage with Afzal . Discuss the validity of Zia’s second marriage and the paternity of her child.
  • Answer) Zia’s second marriage is irregular . Moreover , according to Mohamedan law , a child born within less than six months after marriage is illegitimate.

What is an acknowledgment of paternity?

  • Where the paternity of a child i.e. its legitimate descent from its father, cannot be proved by establishing marriage between its parents at the time of its conception or birth, such a marriage and its legitimate descent may be established by ‘acknowledgment’.
  • Paternity of a child is established if the child is born during the continuance of a valid marriage or within 280 days of its dissolution, the mother remaining unmarried.

Acknowledgement Of Legitimacy

  • Acknowledgment is the process of recognizing a child legally, thereby creating legal rights. One of the landmark cases that holds immense significance on the study of the Acknowledgement of a child under Muslim law is Muhammad Allahabad v. Muhammad Ismail, 1888, wherein it was held that adoption is not recognized in Islam. The case is validated by the Privy Council and relied upon by Indian Courts.

    Adoption is not recognized under the Mohamedan law and acknowledgment is the closest to the concept of adoption. Paternity, by common general practice, is established by way of marriage but in cases where the paternity of a child is not feasible to be proven by way of wedlock entered into, by the parents, Mohamedan Law recognizes acknowledgment as a valid method to establish the marriage and a legitimate descent for the motive of inheritance.

  • The main point in the case of the legitimacy of a child is marriage between its parents.
  • In the case of Habibur Rahman vs Altaf Ali, the privy council held :
  • “ By the Mohammedan Law, a son to be legitimate must be the offspring of a man and his wife, any other offspring is the offspring of Zina, that is, illicit connection, and cannot be legitimate.
  • The legitimacy of a child can purely be established by marriage. In Zina even if the parents of an illegitimate child can validly marry each other in the future, it cannot be regarded as a legitimate child post that.

Acknowledgement And Burden Of Proof

  • When a marriage between two persons takes place under the Mohamedan law, it may have been constituted in the absence of any ceremony and direct proof of marriage is not always available.
  • In the absence of direct proof, indirect proof can be considered good to validate a marriage. Acknowledging a child can be regarded as one of the proofs of a valid marriage, as mentioned above. Such an acknowledgement should not be impossible to prove to be true.
  • Until the claimant establishes his acknowledgement, the burden of proof lies on him to prove a marriage. Once he establishes an acknowledgement, the onus is on those who deny marriage to be negative in fact.
  • Limits To This Doctrine:
  • Certain conditions that hinder the applicability of this doctrine to a case are:
  • If an association validated by the law is not possible between the parents of a child.
  • If the marriage between the parents is disproved.
  • As established by the certain laws and precedents set by landmark cases, it can be said that the Muslim Law recognizes a child to be legitimate on the legitimacy status of his/her parents’ marriage. If a matrimonial alliance between the parents is not possible naturally, or by way of law, the child under no circumstances can be acknowledged. Whether implied or express, the acknowledgement is only valid when it fulfils the prerequisites required.

Conditions Of A Valid Acknowledgement

  • The conditions that must be fulfilled to validate an acknowledgement are:
  • The persons must be capable of contracting.
  • The acknowledgement must mean to accept the other not only as his son but his legitimate son.
  • The ages of the parties must be such as to admit of the acknowledger being the father and the person acknowledged. The minimum age difference between the two parties must be twelve and a half years.
  • The child being acknowledged should not be born of Zina, i.e. adultery, incest or fornication.
  • The case of a disproved marriage would be the issue of fornication. The person acknowledged must not be the child of another man.
  • The acknowledgement should be accepted by the person being acknowledged.
  • Once acknowledgement is made, it cannot be revoked.
  • Acknowledgement may be expressed or implied.
  • If there is a situation where a Muslim man gives divorce to his wife but the two keep on living together and there is a child born in that phase he will not be regarded as a legitimate child even in a situation where the biological father acknowledges him because at that time there was no valid marriage that existed. The rule was established in the case Rashid Ahmed v. Anisa Khatun (1932).
  • If somebody has habitually given another person, the treatment of a legitimate child, in complete good faith, it can be held as an acknowledgement by conduct. It is not mandatory that the acknowledgement be expressed only. It can be implied.
  • Some aspects of the doctrine of acknowledgement under Mohamedan Law can be said to be discriminatory towards an innocent child merely on the fact that he is born out of wedlock, and discriminatory for a natural father of a child on grounds that he did not comply with the conditions for a valid marriage or does not fall under the ambit of being able to acknowledge a child validly. Despite being the biological father of a child, a man can be prohibited from becoming the legal father of that child.
  • The basic principle of the doctrine is that Muslim jurists discountenanced the recognition of the issues which are the fruits of adulterous intercourse, incest and fornication. When the child is known to be illegitimate or proved to be the child of another or the woman is married to another man, or the woman is within prohibited degrees or she is a prostitute, no amount of acknowledgement will render the child a legitimate child of the acknowledger.

Legitimacy when conclusively presumed (sec.112 of the Indian Evidence Act)

  • 112. Birth during the marriage, conclusive proof of legitimacy.—
  • The fact that any person was born :
  • 1)during the continuance of a valid marriage between his mother and any man, or
  • 2) within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
  • The presumption as to paternity in this section only arises in connection with the offspring of a married couple. No matter how soon the birth occurs after the marriage, the presumption of legitimacy is conclusive.
  • However, if it is shown that the husband of the mother did not have access to her, the presumption of sec.112 will not apply.

Points of difference between the two systems :

  • 1) under Evidence Act, a child will be presumed to be legitimate even if it is born the next day after the marriage unless it is shown that its parents could not have access to each other when it could have been begotten.
  • 2) A child born after six months from the date of marriage, but within 280 days of the termination of the marriage is legitimate under either system, subject to lian, in one case and proof of non-access in the other.
  • It may however be noted that the provisions of sec.112 of the Indian Evidence Act are applicable only in case of a valid marriage.
  • The Indian courts have held that the provisions of sec.112 of the Indian Evidence Act, shall not be applicable in the case of marriages that are not valid.
  • Where a married woman was driven out by the husband a few days after the marriage on the ground of her concealed pregnancy, and a child was born to her within about four months after her being driven out , it was held that no presumption under sec. 112 of the Indian Evidence Act could be raised as the marriage was void because of concealed illicit pregnancy.

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