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Parentage: Legitimacy and Acknowledgment in Muslim Law


Parentage: Legitimacy and Acknowledgment
Parentage: Legitimacy and Acknowledgment

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Parentage


Parentage refers to the relationship between parents and their children, while paternity and maternity are the legal terms used to describe the relationship between a father and child, and a mother and child, respectively. These legal relationships entail certain rights and responsibilities, particularly concerning inheritance, guardianship, and maintenance.



In Muslim law, the woman who gives birth to a child is recognized as its mother, regardless of her marital status or whether the child is born out of wedlock. Therefore, establishing maternity poses no complications.



However, the relationship between father and child hinges on the validity of the marriage between the parents. If the marriage is valid or irregular, the child is considered legitimate. Conversely, if the marriage is void, the child is deemed illegitimate.



Thus, paternity can only be established through a lawful marriage, and when paternity is confirmed, the child's legitimacy is also affirmed.



While Muslim law regarding legitimacy is relatively lenient, illegitimacy is stigmatized, and women involved in illicit relationships may face punishment for zina (adultery or fornication). In Shia Muslim law, an illegitimate child is considered filius nullius, meaning they have no nasab (lineage) from either parent.



Consequently, such a child is not legally affiliated with either the father or the mother. However, Hanafi Muslims hold that an illegitimate child is related to the mother for certain purposes. Regardless of the school of Muslim law, an illegitimate child does not have inheritance rights in the property of their presumed father.

 
 

Presumption of Legitimacy 


According to Muslim law, for a child to be considered legitimate, it must not only be born during a lawful marriage but also conceived during such a marriage. A child born after six months of marriage is deemed legitimate unless the father disowns it, while a child born within six months of marriage is considered illegitimate unless acknowledged by the father.



Additionally, a child born within two lunar years after the end of a marriage is presumed to be legitimate unless explicitly disclaimed, with variations in the duration of this presumption according to different schools of Muslim law.



Under Section 112 of the Indian Evidence Act, if a child is born during a valid marriage or within 280 days after its dissolution, with the mother remaining unmarried, it is presumed conclusively that the child is the legitimate offspring of the husband, unless it can be proven that the parties to the marriage had no opportunity for conception. 



The application of Section 112 vis-a-vis Muslim law has been a matter of debate. Some High Courts, like the Allahabad and Lahore High Courts, have held that Section 112 supersedes Muslim law and applies to Muslims. Conversely, the Oudh High Court ruled that Section 112 does not extend to irregular marriages.



Notably, Section 112 considers a child born even a day after marriage as legitimate, unlike Muslim law. Furthermore, while both Muslim law and Section 112 deem a child born after six months of marriage legitimate, the application differs in cases of birth between 280 days and two lunar years after the dissolution of marriage.



Acknowledgment of Paternity 


Paternity constitutes the legal bond between a father and his child. When the legitimacy of a child cannot be established through marriage between the parents at the time of conception or birth, acknowledgment serves as a means to validate the marriage and the legitimate descent of the child.



Acknowledgment typically involves the father declaring the child as his legitimate offspring. This declaration need not be explicit and can be inferred from the father's consistent and open treatment of the child as his own [Muhammad Azmat v Lalli Begum (1881) 9 I.A 8].



Acknowledgment holds significance for both the child, ensuring legitimacy, and the child's mother, implying a presumption of marriage. It extends to various parties, including the father, mother, child, wife, and mawla.



For acknowledgment to be legally binding, the paternity of the child must be uncertain, neither proven nor disproven as illegitimate. The doctrine of legitimacy through acknowledgment applies specifically in cases where the existence of a marriage or its timing concerning the child's legitimacy remains unverified.



It operates on the presumption of legitimacy or lawful union between the parents, establishing legitimacy through acknowledgment. However, it cannot be invoked to legitimize a child already known to be illegitimate [Md. Allahabad v Md. (1888) 10 All 289].

Conditions of a Valid Acknowledgment of Legitimacy 


For an acknowledgment to be considered valid, it must satisfy the following seven conditions:


1. The acknowledger must possess the legal capacity to enter into a valid contract.


2. The acknowledgment must not merely assert sonship but must specifically affirm legitimate sonship, indicating an intention to confer legitimacy.


3. There should be an appropriate age difference allowing for a parent-child relationship, with the acknowledger being at least twelve and a half years older than the child.


4. The child acknowledged must not be born out of adultery, fornication, or incest, which refers to sexual intercourse between closely related individuals prohibited by law.


5. The parentage of the child must not be definitively known to be that of another person.


6. The acknowledged individual must believe themselves to be the acknowledger's child, and the child must either confirm or at least not refute the acknowledgment.


7. The acknowledger should have been eligible to lawfully marry the mother of the child at the time of conception or birth. If evidence shows no marriage between them or that any marriage would have been void, the presumption of legitimacy through acknowledgment cannot be established [Rushid Ahmed v Anisa Khatun (1932) 34 Bom LR 475].



Once an acknowledgment of legitimacy is made, it cannot be revoked later on. However, if the acknowledged person reaches an age where they can comprehend the transaction, they have the right to repudiate the acknowledgment.



While acknowledgment creates a presumption of legitimacy or valid marriage, it remains subject to rebuttal by contrary evidence, as it is a presumption of fact rather than a conclusive presumption.



The doctrine of acknowledgement is not a mere rule of evidence, it is part of the substantive law of inheritance. It gives the acknowledged child the right of inheritance to the acknowledger as his legitimate child. 

 
 

Adoption Not Recognized in Muslim Law 


Adoption remains unrecognized in Muslim law, unlike in Hindu and Roman legal systems. In Muslim jurisprudence, adoption is not considered a valid means of establishing filial relationships, except in cases where specific family or tribal customs, particularly prevalent in regions like Punjab and Oudh, allow for such recognition.


Even if an individual converts from Hinduism to Islam, they cannot legally adopt a child under Muslim law. 



Furthermore, even if a Hindu convert to Islam decides to adopt a son, the adopted child does not gain full rights of inheritance as recognized in Islamic law. This stands in contrast to Hindu customs, where adoption grants the adopted child equal inheritance rights as biological offspring. 



It's essential to note that the adherence of Hindu converts to Islamic practices regarding inheritance and succession does not automatically entail the adoption of Hindu customs related to adoption.


In essence, adoption remains incompatible with the principles of Islamic law and inheritance, irrespective of an individual's prior religious affiliation or subsequent conversion to Islam.



ADOPTION v. ACKNOWLEDGEMENT


In Hindu law, adoption entails the legal recognition of a child as the offspring of another person. Consequently, a mother typically cannot adopt her illegitimate child, although a putative father may adopt his illegitimate son. Additionally, a guardian has the authority to adopt a child under Hindu law.



Contrary to adoption in Hindu law, acknowledgment in Muslim law operates as a declaration by the father acknowledging the child as his legitimate offspring, based on actual paternity. However, acknowledgment cannot legitimize a child already known to be illegitimate, belonging to another person.



Another distinction lies in the relationship between the adopted child and the adoptive parent. In Hindu law, there is no inherent connection between the natural descent of the adopted child and the adoptive parent, whereas under Muslim law, there exists a direct descent between the child and the father, affirmed through acknowledgment.



Furthermore, Hindu law permits parents to give their child in adoption to another person, while Muslim law prohibits acknowledgment of a child conceived through adultery, fornication, or incest.



In Hindu law, specific age requirements dictate that there must be a minimum age difference of 21 years between the adopted child and the adoptive parent. Conversely, under Muslim law, the acknowledger must be at least twelve and a half years older than the child acknowledged.



Moreover, Hindu law stipulates that the adopted child becomes affiliated with the adoptive family after renouncing their natural family. In contrast, acknowledgment in Muslim law does not entail such transplantation of family affiliation.


Both Hindu and Muslim laws allow for the adoption or acknowledgment of males or females, emphasizing gender neutrality in these legal processes.

 
 

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