INTERNAL ASSIGNMENT

FAMILY LAW
ACKNOWLEDGEMENT AND LEGITIMACY

SUBMITTED TO : PROFESSOR KAHKASHAN Y. DANYAL

SUBMITTED BY : ANADI GUPTA

COURSE : B.A. LL.B. (HONS.)

ROLL NUMBER : 6
INTRODUCTION

Pre-Islamic background

The legitimacy of the child did not depend solely on marriage but also on the right of the mother to
affiliate the child to any man with whom she had sexual connection.

The idea in this period was no child shall be left orphaned. Adoption sometimes had no religious motive.

But, much like its origin in Hindu and Roman systems, it was having a religious bias, “having relation to
the repose of the souls of the departed and the preservation of the household divinities”1.

The prophet recognized the custom at the time he adopted Zaid, the son of Haris but later on
disapproved of it saying adoption did not create a blood relation between the adopted child and the
adopting parents. Hence, Muslim law does not recognize any mode of filiation where parentage of a
person adopted is known to belong to a person other than the adopting father. Acknowledgement is the
only mode of filiation in muslim law.

Diffrence between legitimacy and legitimation can be understood by this judgement of privy council in,

Habibur Rahman v. Altaf Ali2

“Legitimacy is a status which results from certain facts, legitimation is a proceeding which creates a
staus which did not exist before.

ISLAMIC CONCEPT

The concept of legitimacy is directly related to marriage. Children born within a lawful wedlock are
legitimate and those born outside the wedlock are illegitimate.

Children born within a Muta marriage are also legitimate.

A child born after six months of marriage and during its continuance is said to be born in a wedlock.

The paternity of a child continues after separation by divorce or death, according to Hanafis, for two
years and according to the Malikis and the Shafiis for four years.

PARENTAGE

Parentage is the relationship of parents to their child and children.3

Paternity is the legal relationship between father and child.

Maternity is the legal relationship between mother and child.

1
Syed Khalid Rashid’s Muslim Law, at p. 144.
2
(1921) 48 IA 114.
3
Mulla, at p. 355.
Guardianship, maintenance and inheritance, all such things depend on paternity and the maternity of
the child.

The woman who gives birth to a child is its mother. Sunni law approves of this relationship even if the
child is born outside of marriage or is an outcome of zina. The child will also inherit from its mother.

Under shia law, giving birth only won’t satisfy the requirements of establishing maternity. A child born of
adultery, incest or fornication is an illegitimate child and is devoid of maternity in the woman who gave
birth to it; so he cannot inherit from her. Thus maternity is a legal relationship.

Paternity is the legal relationship between the child and its begotter.4

A marriage between the man and woman is mandatory and the man must be the husband of the child’s
mother. Marriage can be irregular but not void or batil. Marriage has to be proved.

Under Shia law, A child who is an outcome of a void marriage will neither have paternity nor maternity.
Such a child is called filius nullius.5

Under sunni law, An illegitimate child will only have maternity.

LEGITIMACY

Legitimacy is related to paternity because the maternity of the child is always with the mother, even if
the child is legitimate or illegitimate. But for paternity to be established there has to be a bond of
marriage between the parents of the child. Marriage can be regular or irregular but must not be void.

After paternity is established, legitimacy is established aswell. There has to be a marriage between the
parents of the child.

The privy council held in Habibur Rahman Choudhary v. Altaf Ali Choudhary6

“By the Muhammadan Law, a son to be legitimate must be the offspring of a man and his wife or of a
man and his slave; any other offspring is the offspring of zina, that is illicit connection; but if there be no
such proof, indirect proof may suffice. Now one of the ways of indirect proof is by an acknowledgement
of legitimacy in favour of a son.

Adoption is not allowed in muslim law; it has been expressly disapproved by the Koran. There can be no
legitimation in Islam.

4
Syed Khalid Rashid’s Muslim Law, at p. 146
5
Relation of none
6
Supra, n. 6.
However, when the marriage between the parents of child cannot be proved, father is permitted to do
an acknowledgement of paternity.

In Sadiq Hussain v. Hashim Ali7

If there is a proof of illegitimacy of the child, no statement by any man will make the child legitimate.

Thus, there is no way to legitimise an illegitimate child in Islam. There are two methods through which
legitimacy (and parentage) is established.

 By birth during a regular (also irregular but not void according to Hanafis) marriage, or
 An acknowledgement

Presumptions of legitimacy

The circumstances in which legitimacy (or illegitimacy) is presumed are numerous and conflicting.
Stating briefly, it will be presumed that8 -

1. A child born within 6 months of the marriage is illegitimate, unless the father acknowledges it.
2. A child born after 6 months of the marriage is legitimate, unless the father disclaims it.
3. A child born after the termination of marriage is legitimate, if born----

within 10 lunar months (Shia Law);

within 2 lunar years (Hanafi Law); and

within 4 lunar years (Shafii and Maliki Law).

4. According to section 112, Indian Evidence Act, a child born during the continuance of a valid
marriage, or within 280 days after its dissolution (during which period the widow remains
unmarried), is legitimate, unless it is proved that the husband and the wife had no access to
each other at any time when the child could have begotten.

Possible rationales behimd above presumptions –

Bailee observes: “The shortest period of gestation in the human species is six months,…and the longest
is two years, according to Abu Hanifa, who assigned this as the maximum on the authority of Ayeshah,
who is reported to have said, as having received it from the prophet himself, that the child remains no
longer than 2 years in the womb of its mother, even so much as the turn of a wheel.”9

According to Jung, “the great Imam has (not) fixed 2 years as the longest period of gestation because
this rule is to be read together with the provision that while observing the period of iddat, the woman
must declare that she is pregnant. This fact is to be decided within the period of iddat. And if after

7
(1916) 43 IA 212 at p. 234.
8
Fyzee, at p. 190.
9
Wilson (5th Edn.) at p. 169.
declaration the women were to continue enceinte and exceed the natural maximum limit of gestation,
the case then would be fully covered by the 2 years’ rule of Imam Abu Hanifa.”10

These periods of gestation fixed by the muslim law are criticized that they are not an outcome of
modern knowledge.

However the shortest period of gestation fixed by the English courts is 174 days. In muslim law, the six
months being lunar months, the time period may be less than 180 days, which is acceptable.

The main criticism is upon the maximum period of gestation. The main reason for going with long
periods of gestation and pregnancy must have been the imperfect knowledge at those times.

10
M.U.S Jung, A Dissertation on the Muslim Law of Legitimacy and S. 112 of Evidence Act 13.