FACULTY OF LAW, JAMIA MILLIA ISLAMIA

FAMILY LAW -1 ASSIGNMENT ON

LEGITIMACY AND ACKNOWLEDGEMENT

SUBMITTED BY: MD AL FAHAD ALI

COURSE: B.A.LL.B (H) / SF

SEMESTER: 4th

ROLL NO: 28

GUIDED BY: Dr. KAHKASHAN Y. DANYAL

Associate Professor, Faculty of Law

Jamia Millia Islamia, New Delhi.

 ACKNOWLEDGEMENT

First and foremost, I would like to thank our subject teacher Dr. Kahkashan Y.
Danyal, for the valuable guidance and advice. She inspired us greatly to work on
this interesting assignment. Her willingness to motivate us contributed
tremendously to our assignment. I also would like to thank her for showing us
some sample assignments on how to go about the research assignment. Besides, I
would like to thank the Faculty staff for providing us with a good environment
and facilities for completing this assignment. In addition, I would also like to
thank my seniors who provided me with the valuable information acting as a
source of guidance in making the assignment. Finally, an honorable mention goes
to my family and friends for their understandings and supports in completing this
assignment. Without the help of the particulars mentioned above, making of this
assignment would not have been possible.

THANK YOU!
 SYNOPSIS

❖ Parentage
❖ Legitimacy
❖ Adoption
❖ Acknowledgement
❖ Comparison between Acknowledgement and Adoption
 Legitimacy and Acknowledgement

“Ye know not whether your parents or your children be of greater use to you” (Quran II: IV,
V).

• Establishment of Parentage

Parentage is the relation of the parents to their child. Paternity is the legal relation between
the father and the child, while maternity is the legal relation between the mother and the
child. This legal relation gives rise to certain rights and liabilities as regards inheritance,
guardianship and maintenance.

• Maternity how established

The maternity of the child is established in the woman who gives birth to the child,
irrespective of the lawfulness of her connection with the begetter. As regards to the maternity,
it is immaterial whether the child is an offspring of marriage or an offspring of zina, that is,
fornication or adultery.1

• Paternity how established

(1) The paternity of the child can only be established by marriage between its parents.
The marriage may be valid (sahih), irregular (fasid), but it must not be void
(batil).

Marriage may be established by direct proof. If there be no direct proof, it may be established
by indirect proof, that is, by presumption drawn from certain facts. It may be presumed from
prolonged cohabitation combined with other circumstances, or from an acknowledgement of
legitimacy in favor of a child.

(2) When the paternity of a child is established, its legitimacy is also established. The
main pivot in cases of paternity and legitimacy is marriage. It is also in the case of
an acknowledgement.2

1
§ 338, The Muslim Personal Law(Shariat) Application Act, 1937.
2
§ 339, The Muslim Personal Law(Shariat) Application Act, 1937.
The Privy Council in Habibur Rahman v. Altaf Ali3 held “by the Mohammedan 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.

Under the Mohammedan Law, as in all civilized system of law, “the child follows the bed”,
that is, the paternity of a child horn in lawful; wedlock is presumed to be in the husband of
the mother without any acknowledgement or affirmation of parentage on his part and such
child follows the status of the father.

• Legitimacy

Legitimacy is the status which results from certain facts.

(i) From proper wedlock.

Legitimation is a proceeding which creates a status which did not exists before, that’s why
Adoption is not valid in Muslim Law.

In case of Habibur Rahman v. Altaf Ali,4court held “Muslim Law doesn’t recognize any mode
of filiations where the parentage of person adopted is known to belong to a person other than
the adapting father”.

• Adoption

Islam doesn’t recognize adoption. Among the Romans, as among the Hindus of present day,
it was intimately connected with religious ideas “having relations to the repose of the souls of
the departed and the preservation of the household divinities.” It existed also among pre-
Islamic Arabs.

The Prophet (PBUH) appears to have recognized the custom at the time he adopted Zaid, the
Son of Haris. Later, when he had weaned the idolatrous tribes from revolting practices to
which they were addicted, and had given them higher idea of domestic relationship, he
explained in fuller terms that adoption similar to what was practiced in the “Days of
ignorance” created no such tie between the adopted and the adopting as resulted from blood
relationship.

3
(1921) 48 I.A 114,120, 48 cal. 856, 60, I.C. 837, (’22) A.P.C. 159.
4
Ibid.
In Muhammad Allahdad v. Muhammad Ismail,5Mahmood, J., remarked that, “there is
nothing in the Mohammedan law similar to adoption as recognized in Hindu or Roman
system. The Mohammedan Law doesn’t recognize adoption as a mode of filiation.

Filiation can be made by

(i) Natural birth

(ii) Acknowledgement

In Shia law, if the child is illegitimate, it will be called filius nullius, i.e. relationship of none.

Under Sunni law, an illegitimate child has only maternity, not paternity. He can inherit only
from the mother, not from the father.

In the case of Habibur Rahman v. Altaf Ali6, in the proper sense there is no legimitation under
Muslim law, the adoption of Roman and Hindu law affect the legitimacy.

• Adoption is the Process of Legitimation

In the instant case the court further held that, “if there is no direct proof of marriage, indirect
proof may suffice. One of the ways of indirect proof is by acknowledgement of legitimacy in
favor of child. Further, where marriage between the parties cannot be proved,
acknowledgment of the paternity by the father is enough.

In Sadiq Hussain v. Hashim Ali,7 Court held that, “no statement made by one man that
another ( proved to be illegitimate) is his son can make the other legitimate, but where no
proof of that kind has been given , such a statement or acknowledgement is a substantive
evidence that the person acknowledged is the legitimate son of that person who makes the
statement, provided, his legitimacy be possible.

Under Muslim Law, (i) the conception must be during a lawful wedlock, §112 has imported
the rule of English Law, which doesn’t concerned itself with the conception and recognize
the doctrine of Legitimation per subsequence matrimonium, thus, child born within seconds
of marriage is in the absence of evidence of non access to be deemed to be legitimate under
§112 but according to Muslim law such a child would be illegitimate.

5
(1880) 10 All. 289, 339.
6
(1921) 48 I.A 114,120, 48 cal. 856, 60, I.C. 837, (’22) A.P.C. 159.
7
(1916) ILR 38 All 627.
(ii) Legitimacy forms part of substantive Muslim Law whereas, §112 which is the part of
procedural law have no applicability on legitimacy. § 112 contemplate a valid marriage.

(iii) Act doesn’t define the expression itself if it take a logical view, §112 doesn’t apply to
void marriage. Under Sunni Law, marriage is of three kinds, valid (sahih), irregular (Fasid)
and void (Batil).

Children born out of irregular marriage are also legitimate, and Muslim law applies to them.

• Legitimacy: when conclusively presumed

The fact that any person was born during the continuance of a valid marriage between his
mother and any man, or within two hundred and eighty days after its dissolution, the mother
remaining unmarried, shall be conclusive proof that he is the legitimate son of that man,
unless it can be shown that the parties to the marriage has no access to each other at any time
when he could have been begotten.

The question whether § 112 of the Evidence Act supersedes the rule of Mohammedan Law as
to legitimacy was left open in case of Muhammad Allahdad v. Muhammad Ismail8, the
Allahabad High Court held that the section supersedes the Mohammedan law and that it
applies to Mohammedans. The same view has been taken in Lahore.9 The Chief Court of
Oudh10 has held that even if § 112 applied to Mohammedans, it cannot be applicable to an
irregular (fasid) marriage, as such a marriage is not valid marriage within the meaning of the
section.

• Presumption of Legitimacy

According to Sunni Schools, the presumption of legitimacy is so strong, that in cases where a
child is born six months from the date of marriage and within the two years after the
dissolution of the marital contract, either by the death of the husband or by divorce, a simple
denial of paternity on the part of the husband would not take away the legitimacy from the
child.

Of course, presumption based on the “bed” is subject to the right of disavowal on the part of
the husband for want of the access.

8
(1880) 10 All. 289, 339.
9
Sibt Muhammad v. Muhammad (1926) 48 All. 625.
10
Musammat Kaniza v. Hasan (1926) 1 Luck, 71, 92.
The Fatwai ‘Alamgir’ says:

“Paternity does not admit of positive proof, because the connection of the child with father is
secret. But it may be established by the word of father himself, or by subsisting firaash” that
is, a legally constituted relationship between him and the mother of the child.

• Period of Gestation

The shortest period of gestation, according to all schools, is six months. This period is fixed
in the Qur’an, and the consequently there is little room for divergence among the jurists. The
Radd-ul-Muhtar says the shortest period for the gestation is six months according to all
Imams without difference. But they differ considerably as to the longest period of pregnancy.

The old Hanafi lawyers, upon the authority of a tradition reported by ‘Ayesha (RA), hold two
years as the longest term of the gestation.11 On the other hand, Malik, Shafe’I and Ahmed Ibn
Hanbal extend the term for four years. Several others have considered the longest period to be
five years and sometimes even seven years.

The Imams, Shafe’i and Malik based their opinions on the legendary birth of Buer-asp,
surnanmed Zuhak Tazi, who is said to have been born in the fourth year of his conception,
like Ibn Rab’ia and Ibn Ajlan.

The Shiahs, upon the basis of a decision pronounced by Ali (RA) during his Caliphate,
recognize ten lunar months as the ordinary period of gestation.

• Presumption of Legitimacy

“If a man committed fornication with a woman and she became pregnant and he then married
her, after which she gave birth to the child. If the child was born at six months or more from
the date of marriage, its nasab would be established in the father”; i.e., it would be regarded
as the legitimate offspring of the woman’s husband; but if it was born within six months of
the marriage no ascription would take place “unless the man acknowledged it to be his issue,
but did not say “it was his by fornication”.

In other words, it is the right of the man to legitimate a child born within the time by
acknowledging expressly or impliedly that the conception took place in wedlock.

11
Dar-ul-Mukhtar, p. 282
 • Birth after dissolution of marriage

When a woman is divorced after consummation of the marriage and she is subsequently
delivered of a child, its descent would be established up to 10 months. In other words, if the
child is born within 10 months from the date of the divorce, it would be affiliated to the H.

Also if a child is born after six months from date of divorce but within six months from a
declaration that she had completed her probation, the child would be affiliated but not if the
birth took place after six months from such declaration.

When there has been no assertion of pregnancy on her part [at the time of the dissolution of
the marriage nor subsequent declaration that she had completed her probation, the child
would be affiliated, but not if the birth took place after nine months from such declaration.

A child born to an adult woman, who is observing iddat incumbent on a widow, would, be
affiliated to her deceased H, whether he consummated the marriage or not, for firaash
however is established by a contract not by copula. This rule, however, must be taken subject
to the condition that the other heirs of the deceased have the right to impugn the legitimacy of
the child.

But, if the widow, be a young girl (as-saghira) whose puberty is doubtful, and who made no
assertion of being pregnant, and a child be born to her in less than ten months and ten days
from the date of her husband’s death, the child would be affiliated to him, because in this
case there was presumption that she was pregnant before the expiration of her iddat of
widowhood ( which is four months and ten days), and six months is the shortest time of
gestation. But, if the child be born at ten months and ten days or more, their conceptions will
not be ascribed to him.

• Disavowal of paternity

A husband can disavow or disclaim a child born in wedlock, within the period recognized by
law, on the ground impossibility of cohabitation whether the impossibility arose from disease,
physical incapacity or want of access. 12

• Right of disavowal a terminable right under Muslim Law

12
Fatwai Alamgiri, Vol.II, p. 722.
The Muslim law goes further and holds that the right of disavowal is a terminable right. It
ceases on the occurrence of certain contingencies which the law always keeps in view.

If the father has taken part in the customary ceremonies such as Akika, which in a Muslim
family attend a birth; or has; by his conduct, led the people to believe that he considered the
child as his legitimate child; and has accepted their formal congratulations, then his right to
deny its legitimacy falls to the ground, unless he can prove that at the time he was unaware of
his wife’s infidelity.

• Acknowledgement

The only form of Filiation which is recognized by Mohammedan Law is the one which is
created by Iqrar or “acknowledgement”. Under the Sunni Law, the father alone has the right
to establish the relation of sonship to the total exclusion of the mother or any other relative.

The Calcutta High Court has laid down that the doctrine of acknowledgement is an integral
part of the Mohammedan law and the conditions under which it will take effect must be
determined with reference to Mohammedan Jurisprudence rather than the Evidence Act.13

In the Leading case of Md Allahadad Khan v. Md Ismail Khan,14 Mahmood, J., observed:

“where the paternity of the child, that is, legitimate descent from his father cannot be proved
by establishing a marriage between his parents at the time of conception or birth, the
Mohammedan Law recognizes ‘acknowledgement’ as a method whereby such a marriage and
legitimate descent can be established as a matter of substantive law for purpose of
inheritance.”

The Mohammedan 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 a reason of lawful union between the parents of the child being impossible , or by
reason of marriageiage necessary to render the child legitimate being disproved.

13
Fazilatunnissa v. Kamarunnissa (1904) 9 Cal. W N 352.
14
(1880) 10 All. 289, 339.
Further it was observed that:

“the argument which is aimed at showing that the Mohammedan rule as to the
acknowledgement of the parentage is only a substitute for adoption as understood in the
Hindu and Roman system of jurisprudence is not based on the facts.

The doctrine of acknowledgement applies only to the cases where either the fact or the exact
time of the alleged marriage is the matter of uncertainty that the marriageiage has been
proved nor disproved.

Acknowledgement may be (i) express, or (ii) implied. An express acknowledgement entails a

formal declaration, whereas in implied, it is presumed from the fact that a person has openly
and habitually treated another as his legitimate child.

In Mohammad Azmat v. Lalli Begum,15 the court observed that it has been decided in several
cases that there need not be proof of an express acknowledgement but an acknowledgement
of children by a Mohammedan as his sons may be inferred from his having openly treated
them as such.

In Zamin Ali v. Azizunnisa,16 the husband acknowledge the marriage with a particular lady.
After his death it was disputed that the child was not the legitimate child of the deceased. It
was held where the marriage between the person and the child’s mother was approved by the
former; such a statement may be accepted as his acknowledgement of the child’s legitimacy.

The acknowledgement may be of son or of a daughter, but it must be made by the father. The
acknowledgement of the child must not be made in casual. In Mohabat Ali v. Mohammad
Ibrahim,17 the father made the acknowledgement of the child in casual manner. He never
intended that his acknowledgement should have serious effect. It was held that the act of the
father is not sufficient to confer the status of legitimacy.

In Mohd Allahdad Khan v. Mohd Ismail Khan,18 the plaintiff’s father a Sunni, died leaving
behind two sons and three daughters. The plaintiff filed the suit against the younger brother
and the three sisters claiming that he was the eldest son of the deceased and as such was
entitled to 2/7th share in the property. The defendant’s contention was that while they were

15
(1831) 91 A.8.18 : 8 Cal 422.
16
AIRE 1933 All. 329.
17
AIR 1929 PC 135.
18
(1880) 10 All. 289, 339.
born to the deceased after the marriage between their mother and father, the plaintiff was
born to their mother before she was married to their father, and his paternity was doubtful.
The plaintiff’s argument was that even if he could not prove that he was the son of the
deceased father, the facts remains that the deceased on several occasions acknowledged him
as his son, in support of which he produced some letters written by the deceased.

The Allahabad High Court held that the case was fit one for the application of the theory of
acknowledgement for following reasons—

(a) The paternity of the plaintiff was not proved,

(b) It was also not disproved,
(c) it was also not proved that Plaintiff was the offspring of the zina, or illicit relations or
born prior to the marriage
(d) there was no legal impediment to the marriage between them.

The Court upheld the plea of acknowledgement of Plaintiff by the deceased as the latter’s son
and held him entitled to inherit the property. This case lays down the following principles:

(i) the rule of acknowledgement applies in case of uncertainty of paternity,

(ii) the rule proceeds on the presumption of the lawful union between the mother and
the father of the child,
(iii) the offspring of fornication or adultery cannot be legitimized by acknowledgement
(iv) this Muslim Law rule is not a substitute for the Hindu system of adoption, as the
latter is not acceptable in the Qur’an.

• Conditions of valid Acknowledgement

There are seven essential conditions of a valid acknowledgement:

(i) Unknown paternity---(a) Fact or exact time of marriage is not certain—As

marriage among Muslims may be constituted without any ceremonial, direct proof
of marriage is not always possible where direct proof is not available, indirect
proof is by way of an acknowledgement of legitimacy in favor of the child.
(b) Paternity neither proved nor disproved---It is necessary that marriage between
the parents of the acknowledged child must neither be proved nor disproved; it
must be in state of not proved, i.e. capable of being proved or disproved.
 (ii) Intention to confer status of legitimacy.---In case of Habibur Rahman v. Altaf
Ali,19 the Privy Council held that “the acknowledgement must not be 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, buy, as his legitimate
son”. The general principle of the law is that the acknowledging a child as son
indicates accepting him as legitimate son.
As held in Fazlun Bibi v. Umda Bibi20 this ruke is applicable to Muslim law also.
However, a casual acknowledgement would not confer the status of legitimacy.
There must be an express intention to do so.21
(iii) Acknowledger must be 12½ years older than the acknowledged.---
“The limitation that the acknowledged might be born of the acknowledger means
that the age of the acknowledged should exceed the age of the acknowledged at
least by twelve and half years, and this because is the minimum period of the
puberty for a youth; and this limitation is necessary because if the acknowledger
has not attained puberty, the acknowledgement would be falsify obviously.”
(iv) Legal marriage must be possible between the parents of the person
acknowledged.---
The parents of the acknowledged child must not be in the prohibited degrees of
relationships. Such absolute prohibitions are on the points of (a) Consanguinity,
(b) Affinity, (c) Fosterage, and (d) Polyandry.
If the parents are within the relative degrees of prohibition sop as to make the
marriage between them as irregular but not void, valid acknowledgement can be
made of an issue of such a marriage.
An example of such a marriage can be seen in Rashid Ahmad v. Anisa Khatun.22
The acknowledgement in question was of a child born to the parents who were
remarried after triple divorce. The wife was given triple divorce and without
undergoing a second marriage with another person, the spouse remarried with
each other. Since this marriage was void, valid acknowledgement could not be
given to the child.

19
(1921) 48 IA 114.
20
(1868) 10 WR 469.
21
Abdool Razzak v. Aga Mohd (1893) 21 IAA 56: 21 Cal 666.
22
(1931) 59 IA 21. AIR 1932 PC 25.
 (v) Person acknowledged must not be offspring of zina.---
An offspring of zina is one who is born either:
(a) Without marriage, or
(b) Of a mother who was the married wife of another, or
(c) Of a void marriage.

Baillie says that when a man has committed zina with a woman, and she delivered a son
whom he claims, the descent of the son from the man is not established, and cannot be
acknowledged.

(vi) Person acknowledged must not be known to be the child of another.---

The Muslim Law of acknowledgement relates only to the 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 lawful union. Thus, where a
person is known to be the child of another, valid acknowledgement cannot be
made.
(vii) Person acknowledged must not repudiate the acknowledgement.---
It is a condition that acknowledged child should verify the acknowledgement,
because, if the child does not verify, an impediment is created and the child’s
descent is not established by the mere acknowledgement, but requires proof.
However, if the child is too young, such verification is not essential.

• Effects of acknowledgement

(i) Acknowledgement of child means acknowledgement of the wife also.

(ii) It raises presumption of marriage.
(iii) It gives right of inheritance to children, parents and wife.
(iv) Acknowledgement once made is irrevocable.

• Rebuttal of acknowledgement

The presumption of paternity by acknowledgement may be rebutted on the following

grounds:
 (i) Disclaimer by acknowledged person. ---If the person acknowledged as the
‘son’ by the ‘father’ subsequently refutes or disowns the ack , it becomes
effectless.
(ii) On proof of real parentage. ---If it is proved that the child acknowledged is
the son of another person, the acknowledgement is nullified.
(iii) 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 acknowledgement by the ‘father’ is ineffective.

Thus, in Rashid Ahmed v. Anisa Khatun,23 the husband pronounced triple talaq on the
wife. Subsequently, the child was begotten. Without going under all the formalities of
immediate marriage and divorce, they remarried. This marriage being void, the
recognition of the child could not be upheld valid.

(iv) Age difference less than 12½ years. --- if the difference of age between the
father band acknowledged child is less than 12 ½ years, the acknowledgement
is unacceptable.

• Position of Adoption in Muslim Law

As we have discussed earlier that adoption is not recognized under Muslim Law, in the
following circumstances it is applicable:

(1) A valid custom not abrogated by Shariat Act, 1937.--- before the coming into force
this Act, adoption was customarily recognized in Punjab, Oudh, and somne other
parts. If an Indian Muslim citizen capable of entering into contract under the Indian
Contract Act, §11 declares under s3 of the Shariat Act that the proviosions of the
Miuslim Personal Law (Shariat) Application Act would govern him and his minor
children and descendents, the custom of adoption would cease to apply to him. If a
convert, like a Khoja, Bohra, Kutchi Memon does not declare so, he would be
governed by the customary law.
(2) When the right of adoption is permitted by law. --- The Oudh Estates Act, 1869, §29
entitles a Muslim Talukdar to adopt a son.

23
(1931) 59 IA 21: AIR 1932 PC 25.
• A comparison between acknowledgement and adoption

We may compare the two to highlight difference

(i) While the first system is recognized by Muslim Law, the second is recognized by
Hindu Law; and both the laws reject the alternatives.
(ii) While the basis of the former is the real paternity of the child, in the latter,
another’s child is adopted; one never adopts one’s own child, just as a Muslim
never acknowledges another’s child as his own.
(iii) Similarly, while a direct descendant is acknowledged in the Muslim Law, in
adoption, the child is artificially made the descendant of the adopter.
(iv) There is no gift of the child in the former system, while in the latter system real
father may gift the child to another.
(v) There is no change of family in acknowledgment, while such change takes place
in latter system.
(vi) The object of the acknowledgment is to dispel doubts about the paternity.
Adoption is for material, spiritual, or one or both purposes.