Parentage is the relation of parents to their children. The parentage includes maternity and paternity. It is generally used for a legal relationship which the child has with the parents. These legal relationships are associated with certain rights and duties such as rights of inheritance, maintenance, and guardianship. In the most systems of law, maternity is the natural relationship between the mother and the child, while paternity is the legal relationship between the father and the child. In some systems of law, the legal relationship of father and child may be conferred by legitimation or legitimatization which is a legal process by which the status legitimacy is conferred on a child born outside the lawful wedlock. In this article, we shall discuss paternity of child under Muslim Law.

Section 112 of IEA and Legitimacy of Children:

The concept of legitimacy of children is the direct outcome of the concept of marriage. Society that recognises the institution of marriage also recognises the legitimacy of children born within lawful wedlock; and vice versa. In India, the legitimacy of any child no matter his religion is decided by Section 112 of the Indian Evidence Act, 1872. Section 112 of IEA 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.

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.

In Sibt Mohammad v Mohammad, (1926) 48 All 625 case, the Court held that Evidence is applicable to Muslims also even though it supersedes the Muslim Law.

In Ismail Ahmad v Momin Bibi, 29 October 1940, where 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 Zamin Ali v. Azizunissa, AIR 1933 All 329 case, the Allahabad High Court observed that a statement of the deceased father that he was married to the mother of the child, is evidence of a valid marriage, from which legitimacy of the child may be presumed.

It is submitted that following difficulties arise if Section 112 is taken to supersede the Muslim Law.

1. Whereas under Muslim Law, conception must be during a wedlock, Section 112 has imported the rule of English law which does not concern itself with the conception and recognises the doctrine of legitimation per subsequens matrimonium. Thus, a child born within seconds of the marriage is, the absence of evidence of non-access, to be deemed to be legitimate under Section 112, but according to Muslim Law such a child would be illegitimate.
2. Legitimacy forms part of the substantive Muslim Law, and hence Section 112 is inapplicable to it.
3. Section 112 contemplates a “valid marriage”. But the Act does not define the expression. If we take a logical view, Section 112 does not apply to void marriages. In Hanafi Muslim Law, however, marriages are either sahih (valid), fasid (irregular) or batil (void). Children born of an irregular marriage are also taken as legitimate and Muslim Law of legitimacy applies. Section 112, however, does not cover such marriages, because it does not know an irregular marriage, or at best it will treat such marriages as void, a view not correct according to Muslim Law. So, if Section 112 is allowed to supersede the Muslim Law, the three-fold classification of marriage will have to be made to fit into two categories-valid and void.

In Abdul Rehman Kutty v. Aisha Beevi, AIR 1960 Ker 101 case, where a married woman was driven out by the husband within a few days after marriage on the ground that she had concealed her pregnancy at the time of marriage, a child was born to her within 4 months (less than 280 days) after her exile from the matrimonial home. The court held that no presumption under Section 112 of the Evidence Act could be raised as the marriage was void because of the concealed illicit pregnancy. The Chief Court of Oudh has expressed the view that the section cannot be applicable to a fasid (irregular) marriage, as such a marriage cannot be deemed to be a valid marriage within the meaning of that section, for, a valid marriage must be a flawless marriage.

Acknowledgment of Paternity of Child in Muslim:

Muslim law does not recognize the institute of adoption, which is recognised by other systems. Muslim law recognizes acknowledgement (Ikras) as a method whereby such marriage and legitimate decent can be established as a matter of substantive law for the purpose of inheritance. When there is direct proof of marriage and a child born out from such marriage, the question of acknowledgement does not arise because, in such cases, the legitimacy is ipso facto established. If there is no such direct proof of legitimacy, then legitimacy may be proved by indirect proof, which is called acknowledgement.

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. In Muslim Law Parentage (Rishta) is based on lawful marriage. Hence, if there is no valid marriage between the mother and the father of the child, then such a child is illegitimate. 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. In Muslim Law a person born out of valid and irregular (can be made valid) marriage is legitimate child of the spouses.  Thus, parentage under Muslim law is only available to a legitimate child. When the paternity is established, its legitimacy is also established.

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.

How Maternity is Established in Muslim Law:

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 valid marriage or adultery (Zina). Thus, under Sunni Law, an illegitimate child has his maternity in the woman who gave birth, and the child is entitled to inherit from mother alone.

Under Shia Law, only birth is not sufficient to establish maternity. It has to be also proved that the birth was a result of a lawful marriage. under Shia Law, an illegitimate child has neither maternity in the woman who gave birth nor paternity in the father. So in Shia Law, the illegitimate child can inherit neither from father or mother.

How Paternity is Established in Muslim Law

Paternity of a child can only be established by marriage between his or her parents. The marriage may be valid or be irregular. But it does not become void. Paternity is established in the husband of the mother of a child.

Legitimacy in Muslim Law:

A person born in lawful marriage is said to be the legitimate child of the spouses. The legitimacy and parentage under Muslim law are closely related to marriage. So, a child will be considered legitimate only if he is born in lawful wedlock.

In Habibur Rahman Chowdhari v Altaf Ali Chowdhari, 1921 48 IA 44 case, the Court held that 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.

Presumptions about Legitimacy:

The following are certain presumptions about legitimacy and parentage under Muslim law.

• A child born before six months of a marriage is considered illegitimate. However, the father can acknowledge such a child to change the legitimacy status.
• A child born after six months is legitimate. However, the putative father can disclaim the child by the use of lian.
• A child born after the dissolution of marriage is legitimate if he is born within 10 months as per Shia law or 2 years as per Hanafi Law or 4 years as per Shefai and Maliki Law.

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:

1. The acknowledger must possess the legal capacity for entering into a valid contract.
2. There must be intention to confer status of legitimacy. The acknowledgment must be not merely of sonship, but must be made in such a way that it shows that the acknowledger meant (i.e., intended) to accept the other not only as his son, but, as his legitimate son. (Habibur Rehman v. Altaf Ali, (1921) 23 BOMLR 636)
3. 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, and this is because it is the minimum period of puberty for a youth; and this limitation is necessary because if the acknowledger has not attained puberty, the acknowledgment would be falsified obviously.
4. Person acknowledged must not be the offspring of zina  The person to be acknowledged must not be the offspring of intercourse which would be punishable under Muhammadan law, e.g., adultery, incest or fornication.
5. Person acknowledged must not be known to be the child of another. 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. The Muslim Law of acknowledgment relates only to cases of uncertainty and proceeds on the assumption that the acknowledged child is not only the offspring of the acknowledger by blood, but also the issue of a lawful union. Thus, where a person is known to be the child of another, valid acknowledgment cannot be made
6. Person acknowledged must not repudiate the acknowledgment. The acknowledged person must believe himself (or herself) to be the acknowledger’s child, and the child must verify (or at least must not repudiate) the acknowledgement. It is a condition that the acknowledged child should verify acknowledgment, because, if the child does not verify, an impediment is created and the child’s descent is not established by the mere acknowledgment, but requires proof. However, if the child is too young, such a verification is not essential.
7. The acknowledger should be one who could have lawfully been the husband of the mother of the child, when it was be­gotten. Thus, where there is direct proof that there was no marriage between the man and the mother of the child, or that if there was such a marriage between them, it would have been void, and then the presumption of legitimacy cannot be raised by acknowledgement, however strong such presumption may be. (Rashid Ahmed v. Anisa Khatun, (1932) 34 Bom L.R. 475 PC. 59 I.A. 21)

In Sadik Husainkhan v Hashim Ali khan, (1916) ILR 38 All 627 case, thePrivy Council rejected the acknowledgement because the child which was acknowledged was born out of adultery.

In Rashid Ahmed v. Anisa Khatoon, (1932) 34 Bom L.R. 375 case, where a husband gave triple talaq to his wife under compulsion of his father. After Talaq the wife and the husband lived together and five children were born to them. The man acknowledged the children as his children. After the death of the man, the collateral heirs raised the dispute that the children of deceased are illegitimate and were not entitled to get share in the property. The children prayed to the Court to presume the marriage of their parents trough their conduct and thus they were legitimate children and also asked to acknowledge their legitimacy. The privy council held that the pronounce talaq by the deceased was valid. Thus, the children could not be treated as legitimate. It held that the divorce by the husband created a bar in this case. The bar can only be removed by providing that their mother had after the divorce married another man and the latter had died or divorced her after actual consummation of the marriage, and married the former husband. As these conditions are not proved, remarriage between them cannot be presumeds, and the children could not be held to be legitimate, and their claim must fail.

In Muhammad Allahabad v. Muhammad Ismail, (1886) ILR 8 All 234 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.”

Rebuttal of Acknowledgment:

The presumption of paternity by acknowledgment may be rebutted on the following grounds:

• Disclaimer by acknowledged person: If the person acknowledged as “son by the father subsequently refutes or disowns the acknowledgment, it becomes effectless.
• On Proof of Real Parentage: If it is proved that the child acknowledged is the son of another person, the acknowledgment is nullified.
• When Mother not Lawful Wife: When it is proved at the time when the son was conceived the mother could not be regarded lawfully wedded to the father, the acknowledgment by the father is ineffective.
• Age Difference Less than 12 Years: If the difference of age between the father and acknowledged child is less than 12 years, the acknowledgment is unacceptable.

Effects of Acknowledgement:

• Acknowledgment of child means acknowledgment of wife also and hence the right of maintenance and inheritance.
• It raises presumption of marriage.
• It gives rights of inheritance to children, parents and wife.
• Acknowledgment once made is irrevocable.

Conclusion:

The doctrine of legitimacy by acknowledgement proceeds entirely upon an assumption of legitimacy and establishment of legitimacy by the force of such acknowledgement. Muslim law does not recognize the institute of adoption, which is recognized by other systems. Muslim law recognizes acknowledgement (Ikras) as a method whereby such marriage and legitimate decent can be established as a matter of substantive law for the purpose of inheritance. When there is direct proof of marriage and a child born out from such marriage, the question of acknowledgement does not arise because, in such cases, the legitimacy is ipso facto established. If there is no such direct proof of legitimacy, then legitimacy may be proved by indirect proof, which is called acknowledgement. Paternity of a child can only be established by marriage between his or her parents. The marriage may be valid or be irregular. But it does not become void. Paternity is established in the husband of the mother of a child. 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.

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