Parentage:

Parentage is the legal relation between a child and the parents. The
mother and father of a child called the parents of the child. These
legal relationships are associated with certain rights and duties, such
as, mutual rights of inheritance, maintenance and guardianship.

Maternity, How Established:

The maternity, a relation of child and his mother is established under
Sunni Law, in the woman who gives birth to the child irrespective of
whether the birth was the result of a wedlock or Zina (adultery) and
such child is entitled to inherit the mother's properties. On the other
hand under Shia Law, mere birth is not sufficient to establish
maternity, the child must be the result of a lawful marriage and such
child cannot inherit the mother's property.

Paternity, How Established:

The paternity, a relation of child and his father, cannot be

established by fact. It can only be established by marriage with the
mother of the child. The marriage may be either valid or irregular but
it must not be void. Maternity is fact whereas paternity is a
presumption. If paternity is established the child is to be legitimate.
An illegitimate child has only maternity and no paternity under Sunni
Law on the other hand such child has neither paternity nor maternity
under Shia Law.

(1921) 48 IA 44.
2
(1916) 43 IA 212, 234.
3
1LR (1987) 10 All. 289.
Legitimacy :

A child to be known as legitimate must be the result of lawful

wedlock. Muslim Law insists on the existence of a valid marriage
between the begetter and the bearer of the child at the time of its
conception. The main point in the case of legitimacy of a child is
Marriage between its parents.
The Privy Council held in the case of

Habibur Rahman Chowdhari v Altaf Ali Chowdhari [1]

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 the
gina, that is, illicit connection, and cannot be legitimate.

Therefore, under Muslim law, direct or indirect marriage between

the father and mother of the child can establish the legitimacy of a
child. If no direct proof, the existence of a lawful marriage may be
presumed by–

(i) a prolonged cohabitation of a man and a woman(not

prostitute);
(ii) a man acknowledges a woman as his wife;
(iii) that man acknowledges himself as father of a child.

In, Sadiq Husain v Hashim Ali [2]

An acknowledgement cannot legitimate a child who is proved to be
illegitimate.

Presumption of Legitimacy under Islamic Law :

(1921) 48 IA 44.
2
(1916) 43 IA 212, 234.
3
1LR (1987) 10 All. 289.
 (i) A child born within six month of the marriage is illegitimate
unless the father acknowledges it.
(ii) A child born after six month of the marriage is presumed to
be legitimate, unless the Putative father disclaims it by lian.
(iii) A child born after the dissolution of marriage is legitimate if
born–

(a) Under Shia law, within 10 months.

(b) Under Hanafi Law, within 2 years
(c) . Under Shafie Maliki Law, within 4 years.

These rules have now become outdated because Islamic law of the
presumption of
legitimacy is not applicable in India.

The Present Law of Legitimacy:

In India, the conclusive proof of the legitimacy of a child (whether

Muslim or Non-Muslim) is determined under the provisions of the
Indian Evidence Act, 1872–

(i) that any person born during the continuance of a valid

marriage between his mother and any man;
(ii) the person born within 280 days after the dissolution of
marriage,the mother remaining unmarried.

Note:
Unless it can be shown (in both the cases) that the parties to the
marriage had no
access to each other at any time when the person could have been
begotten.

(1921) 48 IA 44.
2
(1916) 43 IA 212, 234.
3
1LR (1987) 10 All. 289.
Difference Between Present Law and Islamic Law :

(i) Under Muslim law, a legitimate child should not only be born
but also be conceived during a valid marriage while under
the Evidence Act, a child is presumed to be legitimate even if
it is born the next day after the marriage unless it is shown
that parties could not have access to each other when it
could have been begotten.
(ii) Under Muslim Law a child born within 2 years (or in 4 years
under Shafie & Maliki (schools) after the dissolution of the
marriage may be legitimate whereas in Evidence Act a child
born after 280 days can never be treated as legitimate.

Acknowledgement of Paternity (Ikrar-e-Nasab) :

Where the paternity of a child, i.e. its legitimate descent from its
father, cannot be proved by establishing a marriage between its
parents at the time of its conception or birth, such marriage and
legitimate descent may be established by acknowledgement.
Acknowledge here means a declaration ascertaining the
paternity where, although the marriage exists but the child's
paternity is doubtful because no direct proof of marriage. An
acknowledge need not be express, it may be presumed from the
fact that one person has habitually and openly treated another as his
legitimate child. The child may be a son or a daughter.

Muhammad Allahdad Khan v Muhammad Ismail [3]:

The father of Allahdad Khan, a Sunni, died leaving behind two sons
and three daughters. Allahdad filed a suit to be the eldest son of the
deceased and was therefore entitled to a 2/7 of the share in the
estate. The defence was that the plaintiff was only step-son of father
(1921) 48 IA 44.
2
(1916) 43 IA 212, 234.
3
1LR (1987) 10 All. 289.
having been born of their mother before she married their father,
the deceased. The plaintiff contended that even if he failed to prove
the son of the deceased but he had been acknowledged as the son of
deceased on several occasions. Justice Mahmood, held that the plai
ntiff had established himself as the legitimate son of the deceased
and was, therefore entitled to succeed to him.

Conditions of a valid acknowledgement:

The paternity of a child will be established in a man, if the following

seven conditions are fulfilled–
1. Intention to Confer Legitimacy :
The acknowledgement must not be merely of sonship, but of
legitimate sonship. Mere casual acknowledgement, not intended to
confer the status of legitimacy, will not be a legal acknowledgement.
2. Age of the Acknowledger :
The age of the parties must be such that they may be father and son,
i.e. the acknowledger must be at least twelve and a half years older
than the person acknowledged.

3. Child of Others :
The child so acknowledged must not be known to be the child of
another.
4. Person Acknowledged Should Confirm Acknowledgement :
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.

(1921) 48 IA 44.
2
(1916) 43 IA 212, 234.
3
1LR (1987) 10 All. 289.
5. Legal Marriage Possible Between Parents of the Child
Acknowledged :
The parents of the child acknowledged must not be in any prohibited
relationship (either by consanguinity, affinity etc). The marriage
should be possible at the time when the child was begotten.

6. Competency of the Acknowledger :

The acknowledger must possess the legal capacity for entering into a
valid contract, that is, he should be adult and sane.

7. Offspring of Zina :
The child acknowledged must be the result of lawful wedlock,
that must not born either without marriage, adultery, of a void
marriage etc.

Legal Effects of Acknowledgement:

1. By acknowledgement, the child becomes the legitimate issue and

its paternity is established.
2. On being legitimate issue, the child is entitled to inherit the
properties of the
acknowledger, its mother as well as of other relatives.
3. Acknowledgement also establishes a lawful marriage between the
child's mother and the acknowledger.The child's mother gets the
status of the wife of the acknowledger and she is also entitled to
inherit the
properties of her husband (acknowledger)

(1921) 48 IA 44.
2
(1916) 43 IA 212, 234.
3
1LR (1987) 10 All. 289.