Legitimacy Under Muslm and Modern Hindu Law Blog 2

The concept of legitimacy under Muslim law and modern Hindu law
Introduction
In India, on the basis of applicability of particular branch of law upon
persons, laws may be either territorial or personal. The territorial law is the
faction of law applicable in a particular territory and is universally
applicable on all persons of communities in that territory, say the Indian
Penal Code, the Indian Contract Act and so on.
On the contrary, the civil laws which applies to a particular religious

community are covered under the faction of personal laws. Thus, the Hindu
law is applicable upon Hindus and so does the Muslim law on Muslims. The
Indian judicial system recognises the practice of customary rules on certain
religious matters to some extent, for example, the Saptpadi under Hindu law
or the concept of Dower under Muslim law.
The concept of legitimacy and parentage under Muslim law are closely
related to marriage. Parentage refers to the relation of a child to its parents
whereas legitimacy is the status of a child who is born to parents who are
legally married to each other.
According to the provision contained in section 112 of the Indian Evidence

Act, 1872, every child born during a wedlock shall be deemed to be
legitimate unless contrary is proved. But this is not the position under the
Muslim law. Consequently, how is the concept of legitimacy under
Muslim law different from that of the modern Hindu law?
The English common law and legitimacy
Coke had bizarrely stated that the illegitimate child was filius nullius – the
child of nobody. This was the position till 1950. The basic English common
law rule is that if the parents of a child were lawfully married either at the
time of its conception or at its birth, such child is legitimate in the eyes of
law.
Even though the child must have been conceived before the marriage, the
presumption of legitimacy arises, for by marrying the mother the husband
has prima facie taken to have acknowledged the child as his own. The
burden of proving the contrary is upon whoever assets the illegitimacy of
the child.
In the case of FRANCIS V. FRANCIS1, the husband failed to rebut the

presumption that he was the father of his wife’s child, albeit she admitted
committing adultery at the time of conception. In such a case it was almost
impossible for the husband to dispute the paternity of a child born to his
wife.
Another important instance of presumption of legitimacy is equally

applicable where the child is born within the possible period of gestation
after the marriage has been terminated either by the death of the husband or
by the final decree of divorce or nullity.
Although the average period of gestation is 280 days, the medical witnesses
have proved it difficult to tie down to either a minimum or a maximum
period.
The concept of legitimation by subsequent marriage is widely recognized in

the common law world. according to the section 2 of the Legitimacy Act,
1959, a child born out of a lawful wedlock is treated as legitimate provided
that at the time of its conception or, if later, at the time of the celebration of
the marriage, either parent or both, reasonable and honestly believed that
their marriage was valid.
The Muslim law of legitimacy
1
(1960) P.17 (D.C)
The Muslim law emphasizes that there should be a valid marriage between
the begetter and the bearer of the child at the time of conception. Only such
child shall be deemed legitimate child of the spouses.In other words,
according to the Mohammedan law, a son to be legitimate must be the
offspring of a man and his wife, otherwise it would be the offspring of zina,
that is, illicit connection and not a legitimate.
Under the Ithna Ashri Law, full protection is provided to the child born out
of a lawful union. Thus, legitimacy is established along with the paternity of
the child. Therefore, there are certain rules regarding the presumption of
legitimacy under the Muslim law. If a child is born within six months after
the marriage, he is deemed to be illegitimate until the father acknowledges
the same. On the contrary, if a child is born after six months from the date
of the marriage is presumed to be legitimate, unless the putative father
disclaims it by Lian.
The last rule in this regard is a child born after dissolution of marriage is
legitimate – under Shia law, if born within 10 lunar months; under Hanafi
law, if born within 2 lunar years; and under Shafei and Maliki laws, if born
within 4 lunar years.
In the case of SADIK HUSSAIN V. HASHIM ALI2, it was stated that no

statement one man that another is his son can make that other legitimate, but
were no proof of that kind has been given such a statement of
acknowledgement is substantive evidence.
In the case of GOHAR BEGUM V. SUGGI3, the supreme court made a

clear distinction between a child born out of lawful wedlock and the child
born out of an unlawful union. The Hon’ble Court also stated that under the
Hanafi law, the women who gives birth to such child shall be regarded as its
mother irrespective of her legal relationship with the begetter of the child.
2
(1916) 43 IA 212, 234
3
AIR 1960 SC 93
Legitimacy under modern Hindu law & S. 112 of Indian Evidence Act
As per the Hindu law, a child born out of the lawful wedlock on the
principles enshrined in sections 5 and 7 of the Hindu Marriage Act,1955
shall be deemed to be legitimate. On the contrary, the position of children
born out of void or voidable marriage were illegitimate according to section
16, but this was not the position after the Marriage Laws (Amendment) Act,
1976. The amended section lays down that such children are legitimate, but
the position as to inheritance remains the same as before. They would be
heirs to their parent’s property alone and to none else. This privilege was
given only to void marriages as per section 11 of the act.
Then comes the section 112 of the Indian Evidence Act, 1872 in picture. It
deals with presumption of the legitimacy of a child and gives two-fold
essential conditions on the same. The presumption enshrined in this
provision is that a child born to married parents is conclusively presumed to
be their child. The two-fold essential conditions for the presumption to arise
are,1) the child should have been born during the continuance of a valid
marriage or within 280 days after its dissolution, the mother remaining
unmarried; 2) the parties to marriage should have had access to each other at
any time when the child could have been conceived.
In the case of A.G. RAMCHANDRAN V. SHAMSUNNISA BIBI4, the

Madras high court held that section 112 of the Evidence Act, applies to all
persons including Mohammedans even though they have personal laws as
there is nom provision exempting them from the application of section 112.
Conclusion – the comparison
India being a secular state, respects the personal laws of all the communities
to some extent. Just like marriage, all communities have different personal
laws on legitimacy. Parentage and legitimacy go hand in hand.
4
AIR 1977 Mad. 182
Under the Evidence Act, a child will be presumed to be legitimate even if it
is born the next day after the marriage unless the contrary is proved,
whereas under the Muslim law, such child born within less than six months
after the marriage is illegitimate, unless acknowledged by the father.
Secondly, under the Evidence Act, a child born within 280 days after the
termination of marriage will be legitimate, provided that the mother remains
unmarried whereas, under the Muslim law, a child born after six months
from the date of marriage is presumed to be legitimate, unless the putative
father disclaims the same.
Hence, section 112 of the Evidence Law is applicable on Mohammendans

also as there is no specific provision as to its exemption on them.
References
 Common law on legitimacy: (July 10,2020) retrieved from:

http://14.139.60.114:8080/jspui/bitstream/123456789/736/31/Musli
m%20Law%20of%20Legitimacy%20and%20Section%20112%20of
%20the%20Indian%20Evidence%20Act.pdf
 Hindu law on legitimacy: (July 10,2020) retrieved from:
http://14.139.60.114:8080/jspui/bitstream/123456789/684/16/Legiti
macy.pdf
 Provision of Evidence law: (July 11,2020) retrieved from:
https://www.toppr.com/guides/legal-aptitude/family-law-
i/legitimacy-and-parentage-under-muslim law/#:~:text=As%20Per
%20Muslim%20law%2C%20the,according%20to%20the
%20evidence%20act.

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The concept of legitimacy under Muslim law and modern Hindu law

On the contrary, the civil laws which applies to a particular religious

According to the provision contained in section 112 of the Indian Evidence

The English common law and legitimacy

In the case of FRANCIS V. FRANCIS1, the husband failed to rebut the

Another important instance of presumption of legitimacy is equally

The concept of legitimation by subsequent marriage is widely recognized in

The Muslim law of legitimacy

In the case of SADIK HUSSAIN V. HASHIM ALI2, it was stated that no

In the case of GOHAR BEGUM V. SUGGI3, the supreme court made a

In the case of A.G. RAMCHANDRAN V. SHAMSUNNISA BIBI4, the

Conclusion – the comparison

Hence, section 112 of the Evidence Law is applicable on Mohammendans

 Common law on legitimacy: (July 10,2020) retrieved from:

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