PARENTAGE

Parentage- Maternity and Paternity

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Parentage is relation of parent to their children. Maternity is a legal relation between mother and
child and paternity is a legal relation between father and child. The term ‘parentage’ is generally
used for a legal relationship which a child has with his parents.

“When one person is deemed in law to be the father or mother of another, paternity or
maternity or latter is said to be established in the former.1”

MATERNITY- HOW ESTABLISHE

Under Sunni Law, the maternity of a child is established in a women who gives birth to the child
irrespective of whether the birth was whether the result of a wedlock or zina(adultery). However,
under Shia Law, mere birth is not sufficient to establish maternity; it has to be also proved that
the birth was the result of a lawful marriage. Thus under Muslim law a child born out of
marriage tie is legitimate and enjoys the status of inheritance from father as well as the mother.
But any child born of adultery, incest, or fornication is illegitimate. Under Sunni Law, an
illegitimate child has its maternity in the women who gave birth to it and the child is entitled to
inherit only from the mother alone. However under Shia Law an illegitimate child, has neither
maternity in the women who gave birth to the child nor can paternity in the father, who begot it,
as such under Shia Law, the illegitimate child inherit neither from mother nor from father.

Thus maternity is the legal status of a child which determines the succession and inheritance of
its mother’s estate while paternity is that which determines inheritance and succession of the
paternal estate in favor of the child. If a man commits zina with a women and a child is born, ir is
considered to be the child of its mother only and inherits from her and her relations under Sunni
law. But the man is not considered to be the father of the child, for paternity is established only
by marriage, nor is the child in law the child of the man; it is illegitimate and not entitled to
inherit from him.

PATERNITY- HOW ESTABLISHED

1
Tayabji: Muslim Law 5th ed. P. 199

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“The paternity of a child can only be established by marriage between its parents. The marriage
may be valid or irregular but it must not be void.”2 It is established in the husband of the mother
of the child.

“Paternity is established in the person said to be the father by proof or legal presumption
that the child was begotten by him on a women who was at the time of conception his lawful
wife or was in good faith and reasonably believed by him to be such or whose marriage being
merely irregular and not void ab initio has not at that time been terminated by actual
separation.”3

An issue of void marriage has has neither paternity nor maternity under the Shia law. That is,
under Shia Law, a bastard is a fillius nullius i.e., a relation of none. Under Sunni Law an
illegitimate child has only maternity and no paternity, i.e., the ‘maternity and ‘paternity’’ of a
child begotten in consequence of adultery merge together in the mother of child.

Gautam Kundu v. State of West Bengal4

The petitioner herein disputed the paternity of the child and prayed for blood group test of the
child to prove that he was not the father of the child. According to him if that could be
established he would not be liable to pay maintenance. That application was dismissed on the
following two grounds:

 There were other methods in evidence to disprove the paternity

 Moreover it is settled law that medical test cannot be conclusive of paternity.

Aggrieved by this order, a revision was preferred before the High Court. Dismissing the petition
it was held that Section 122 of the Evidence Act says where during the continuance of a valid

2
Mulla: Mahommedan Law, 19th ed. P. 355
3
Wilson
4
AIR 1993 SC 22961

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marriage if a child is born that is a conclusive proof about the legitimacy. Thus this section
constituted the stumbling block in the way of the petitioner getting its paternity disproved by
blood group test.

The English Law permitting blood test for determining the paternity of legitimacy could not be
applied in view of section 112 of the Evidence Act. Therefore, it must be concluded that Section
112 read with section 4 of the said Act debars the evidence except in cases of non-access for
disproving the presumption of legitimacy and paternity.

Blood test cannot show positively that any man is father, but they can show positively that a
given man could not or could be the father. It is obviously the latter aspect that proves more
valuable in determining paternity.

The Supreme Court in this case had observed the following points:-

 The court in India cannot order blood test as matter of course;

 Wherever application are made for such prayers in order to have raving injury, the prayer
for blood test cannot be entertained.
 There must be a strong prima facie ease in that the husband must establish non-access in
order to dispel the presumption arising under section 112 of the Evidence Act.
 No one can be compelled to give sample of blood for analysis.
 The Court must carefully examine as to what would be the consequences of ordering the
blood test; whether it will have the effect of branding the child as a bastard and the
mother as an unchaste women.

LEGITIMACY

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Muslim law insists on the existence of a valid marriage between the begetter and the bearer of
the child at the time of conception. A person born in lawful wedlock is said to be the legitimate
child of the spouses. The main point in the case of legitimacy of the child is the marriage
between its parents.

Habibur Rehman Chowdhari v. Altaf Ali Chowdhari5

“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, that is, illicit connection; and
cannot be legitimate. The term ‘wife’ necessarily connotes marriage, but as marriage may be
constituted without any ceremony; the existence of a marriage in any particular case may be an
open question. Direct proof may be available, but if there is no such proof, indirect proof may
suffice. Now one of the proof is by an acknowledgement of legitimacy in favor of a son”.

Sadik Hussain v. Hashim Ali6

It was said that no statement made by one man that another (proved to be illegitimate) 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 that the person so acknowledged is the legitimate son
of the person who makes the statement provided his legitimacy be possible. In the case of
maternity it is immaterial whether the child is the offspring of lawful wedlock or an offspring of
unlawful union is adultery (zina).

Gohar Begum v. Suggi7

5
48 IA 44
6
(1916) 43 IA 212, 234
7
AIR (1960) SC 93

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The Supreme Court made a distinction between the child who was born out of a lawful union and
the child was born out of an unlawful union. The court said that under the Hanafi Law, the
woman who gives birth to a child shall be regarded as its mother irrespective of her legal
relationship with begetter of the child.

Under the Ashari Law the child who was born out of lawful union is provided full protection. In
case of lawful union only the lady is regarded as his mother. Where the lady is not married to the
begetter at the time of the child conceptions, she will not be considered as the mother for the
purpose of law.

When the paternity of the child is established, its legitimacy is also established. Parentage is
established in Muslim Law in one of the two ways and there is no third-

 By birth during a regular(but not void marriage)

 By acknowledgement, in certain circumstances.

A. SPECIAL RULE REGAARDING PRESUMPTION OF LEGITIMACY

According to Muslim Law the rules with regard to presumption of legitimacy are as follows:

1) A child born within less than six months after the marriage is illegitimate, unless the father
acknowledges it.
2) A child born after six months of the marriage is presumed to be legitimate, unless the
putative father disclaims it by lian.
3) A child born after the dissolution of the marriage is legitimate:
a) Under Shia Law, if born within 10 lunar moths.
b) Under Hanafi Law, if born within two lunar years.
c) Under Shafei and Maliki Laws, if born within 4 lunar years.
B. LEGITIMACY WHEN CONCLUSIVELY PRESUMED (SECTION 112 OF THE
INDIAN EVIDENCE ACT)

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Section 112 of the Indian Evidence Act provides: ‘The fact that any person born during the
continuance of a valid marriage between his mother and any man, or within 280 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 had no access to each
other any time when he could have been begotten.

As regards of a child born after 280 days of the dissolution of marriage, the Court may presume
its legitimacy if it thinks the child is likely to be legitimate, regard being had to the “common
course of natural events” in their relation to the fact of a particular case.

POINT OF DIFFERENCE BETWEEN TWO SYSTEMS:

1. Under Evidence Act, a child will be presumed to be legitimate even if it is born the next
day after the marriage unless it as shown that its parents could not have access to each
other when it could have been begotten.
2. A child born after six months from the date of marriage, but within 280 days of the
termination of the marriage is legitimate under either system, subject to lian, in the one
case and proof on non-access in the other.
3. A child, born after 280 days but within 2 years after the termination of marriage would be
legitimate according to the Hanafi rule subject to lian.

Under the Evidence Act, however the case will be governed by Section 114 of the said act which
provides that the court may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural events. In case of Ashraf Ali.8.
before the passing of Indian Evidence Act, the Court declined to follow this part of rule of
Mohammedan Law in case of a child born 19 months after date of divorce on the ground that to
hold such a child was legitimate “would be contrary to the course of nature and impossible”

The Evidence Act supersedes the rule of pure Muslim Law

8
Ashraf Ali v. Arshad Ali, (1871) 16 WR 260 (Cal).

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 The question arises whether the statutory provision of procedural law under the Evidence Act
supersedes the provision under the provision of the substantive law. Opinions are divided but the
balance of authority remains in favor of the Evidence Act.

According to D.F.Mulla, the provisions of Evidence Act supersede the substantive law under
Mohammedan jurisprudence. Ameer Ali,9 says that section 112 of the Indian evidence Act
embodied the English rule of law and cannot be held to vary or supersede bu implication the
rules of English law. Tyabji does not agree with the above opinion of Ameer Ali.

In A,G. Ramchandran v. Sahamsunnisa Bibi10

The Madras High Court had held that Section 112 of the Indian Evidence Act is generally in its
terms and it applies to all persons including Mohammedans, who may have personal law of their
own relating to legitimacy as there is no provision exempting them from the application of
section 112.

It may however be noted here that the provision of section 112 of the India Evidence Act is
applicable only in case of a valid marriage. The Indian Court have held that the provision of
Section 112 of the said act is shall not be applicable in cases of Marriages which are not valid.

Musamat Kaniz v. Hasan11

The chief court of Oudh has held that even if section 112 applied to Mohammedans, it cannot be
applicable to an irregular (fasid) marriage as such a marriage is not a valid marriage within the
meaning of the section : ‘Valid’ in view of that Court means ‘flawless’. Where a marries women
was driven out by the husband a few days after marriage on the ground of her concealed
pregnancy, and a child was born to her within 4 months after her being driven out, it was held

9
Ameer Ali Mohameddan Law of the Indian E
10
AIR 1977 Mad. 182
11
(1926) 48 All. 625

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that no presumption under section 112 of the Indian Evidence At could be raised as the marriage
was void because of concealed illicit pregnancy.12

According to K.P. Saxena “the Muslim law of legitimacy should prevail, as it is the substantive
portion of the law, and section 112 ought not to be applied in such cases.”

On the whole the balance of the authority favors that the Evidence Act supersedes the
substantive law under Muslim jurisprudence.

C. LEGITIMACY PRESUMED FROM PRESUMPTIVE MARRIAGE

Where certain circumstances give rise to the presumption of marriage; they also give rise to the
presumption of the legitimacy of the child.13

Mohammad Baukar v. Shurffon Nisa14

The Privy Council said: the legitimacy or legitimation of a child of Mohammedan parents may
properly be presumed or inferred from circumstances without proof or at least any direct proof,
either of a marriage between the parents, or any formal act of legitimation. In other cases the
Privy Council observed that there had been a consecutive course of treatment both of the mother
and of the child for the period of seven to eight years, which would not have been adopted except
on the presumption of cohabitation or of the son being the issue of the putative father.15

Where inference of marriage between a man and a women or the child having been born in the
lawful wedlock is possible, the Court will presume legitimacy, unless the contrary is most clearly
and irrefutably be proved.16

12
Abdul Rehman Kutty v. Aisha Beevi AIR 1960 Ker, 101
13
M Haneefa v. Pathummal Beei 1972 KLT 512
14
8 MIA 136
15
Khajah Hidayat Ullah v. Rai Jan Khamun 3 MIA 295
16
Mossa Adam Patil v. Ismail Mossa 12 Bom. LR 169

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In disproof of legitimacy, no better class of evidence can be produced than the evidence of near
relatives of the parties concerned or the evidence of the general family reputation.17

D. LEGITIMAVY AND LEGITIMATION

Legitimacy is the fact of a child being legitimate under the Muslim law. It is the status of a child
resulting from certain facts about the relationship between his parents. If legitimacy of a child is
in doubt but not disproved, acknowledgement whether express or implied of its father confers
upon it the status of legitimacy. If the child is proved to be illegitimate, no acknowledgement can
legitimize it. Hence, acknowledgement is a mere declaration of the child’s legitimacy- a status
which it has always since birth. Legitimation as a process to confer legitimacy upon one who
was never a legitimate child is known in Islamic Law.

Habibur Rahman chowdhury v. Altaf Ali Chowdhary18

One Habibur Rahman claiming to be a son of a Jewess Mozelle Cohen by Nawab Sobhan of
Bogra and affirming the marriage of Mozelle Cohen with the Nawab and acknowledgement of
his sonship by the deceased Nawab sued Altaf Ali the deceased Nawab’s Daughter’s son and
other for a share of inheritance. Held that the plaintiff, having failed to prove that the deceased
Nawab acknowledged him as his son or married Mozelle Cohen, could not be regarded as natural
son of the deceased and his suit must fail.

In the course of their judgment, your Lordships observed:

“Legitimacy is a status which results from certain existing facts. Legitimation is a

proceeding which creates a status which did not exist before. In the proper sense there is no
legitimation in Mohammedan Law. Examples of legitimation properly so called, may be found in
other systems, e.g., adoption of Hindu Law ”

17
Sadiq Hussain v. Hashim Ali 43 IA 212
18
AIR 1922 PC 159

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 ACKNOWLEDGEMENT

Muslim law does not recognize the institution of adoption which is recognized by other systems.
Under Hindi law adoption is intimately connected with religion having repose of the souls of the
departed and the preservation of the household divinities. Ameer Ali says that Prophet
Mohammad appeared to have recognized the custom at the time he adopted Zaid the son of
Haris. Later, on when he had weaved the idolaters tribes from the revolting practice to which
they were addicted and had given them higher ideas of domestic relationships. He explained in
fuller terms that the 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 relationships. On the one
hand Muslim law recognizes the institution of ikras or acknowledgement on the other hand it
disproves legitimation.

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

“Acknowledgement is not legitimate (or making one legitimate who was not so prior to
acknowledgement). In Muslim Law, an acknowledgement of legitimacy is a declaration of
legitimacy for the purpose of inheritance”.

The Muslim Law of acknowledgement of parentage with legitimating effect has no reference
whatsoever to cases in which the illegitimacy of the child is proved and established, either by
reason of a lawful union between the parents of the child being impossible or by reason of
marriage necessary to render the child legitimate being disproved. The doctrine of
acknowledgement relates only to cases where either the facts of marriage itself or the exact time

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of occurrence with reference to the legitimacy of the acknowledged child is not proved in the
sense of the law as distinguished from disproved.

Mohammad Khan v. Ali Khan19

Madras High Court observed that the doctrine of acknowledgement could be invoked only where
the factum of marriage or the exact time of the marriage could not be proved and not to cases
where lawful union between the parents of the child was not possible as in the case of incestuous
intercourse or an adulterous connection and where the marriage necessary to render the child
legitimate was disproved.

In other words, the doctrine applies only to cases of uncertainty as to legitimacy, but the effect of
acknowledgement always proceeds upon the assumption of a lawful marriage, between the
parents of acknowledged child.

Muhammad Allahdad Khan v. Muhammad Ismail20

The father of Allahdad Khan, a Sunni, died leaving behind two sons and three daughters. The
eldest son, Allahdad Khan filed a suit against his younger brother and three sisters and certain
other persons alleging that je was eldest son of the deceased and was therefore entitled to a2/7 of
the share in the estate. The defense was that the plaintiff was only step-son of father having been
born of their mother before she married their father, the deceased. The plaintiff contended that
even if he failed to prove that he was the son of the deceased, he had been acknowledged as such
by the deceased on several occasions and was, therefore, entitled to succeed as his son. He filed
certain letters in which he had been referred to by the deceased as his son.

Decision-
19
AIR 1981 Mad. 209
20
ILR (1987) 10 All. 289

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Justice Mahmood, held that so far as inheritance is concerned, the existence of consanguinity and
legitimate is a descent as a condition precedent to the right to succeed, and such legitimate
descent depends upon the existence of a Valid marriage between the parents. Where marriage
could not be proved by direct evidence and no legitimacy established, Mohammedan Law
prescribes a means whereby the marriage and legitimacy may be established as a matter of
substantive law and that is acknowledgement of paternity. Acknowledgement under
Mohammedan Law is a rule of substantive law and not a rule of evidence merely, like
presumption under Evidence Act. It confers status of sonship and right to succeed. Such a
acknowledgement always proceed on the assumption of valid union between the parents. Child
whose illegitimacy is proved by reason of the union between the parents and not being lawful,
cannot be legitimized by acknowledgement which id of effect only when either the fact of the
marriage or its exact time with reference to the birth of the child is a matter of uncertainty. On
the facts of the case it was held that the plaintiff had established himself as the legitimate son of
the deceased and was, therefore, entitled to succeed him.

a) Necessity of acknowledgement of legitimacy-

When there is a direct proof of marriage or there are circumstances from which marriage may be
presumed, the question of acknowledgement of legitimacy does not arise because in such case
the legitimacy is ipso facto established or presumed to be established.

If there is no such direct proof of legitimacy, indirect proof may suffice and one of the ways of
indirect proof is by acknowledgement of legitimacy by father (not mother) in favour of a son. In
other words, the doctrine applies only to effect but that effect always proceeds upon the
assumption of a lawful union between the parents of the acknowledged child.

S. Amanullah Husaini v. Rajamma21

21
AIR 1977 Andhara 152

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The plaintiff filed a suit against the defendant Rajamma wife of one Habibullah Husaini and the
brother of S. Amanullah, on the ground that she was only a maidservant of Habibullah Hussaini,
and was living in the same house. She was not legally wedded wife nor is the second defendant
his son. The court held that marriage may be established by indirect proof i.e., by presumption
drawn from certain factors. It may be presumed from prolonged cohabitation or from
acknowledgement of legitimacy in favor of a child.

In case of a good acknowledgement of legitimacy the marriage between the parents of child
acknowledged will be held proved and this legitimacy established unless the marriage is
disproved.22

In case, the marriage between the parents of the child could not be proved, the acknowledgement
shall carry no force in the eyes of law. The acknowledger must acknowledge the child
specifically.23

b) Basic principles of the doctrine

The basic principle of the doctrine is that the Muslim jurists discountenanced the recognition of
the issues which are the fruit of an adulterous intercourse, incest and fornication. When the child
is known to be illegitimate, or proved to be the child of another or the women I married to
another man, or the women is within prohibited degrees or she is a prostitute no amount of
acknowledgement will render a child a legitimate child of the acknowledger. The doctrine
applies only in the cases of uncertainty as to legitimacy, and in such cases acknowledgement has
its effect but that effect always proceeds upon the assumption of a lawful union between the
parents of the acknowledged child.

22
Mohammad Sadiq v. Mohammad Hassan AIR 1943 Lah 225
23
Habibur Rahman v. Altaf Ali AIR 1922 PC 159

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The doctrine of acknowledgement is applicable only where either the fact of the marriage itself
or that exact time of its occurrence is neither proved nor disproved. In the case of a child who is
proved to be the child of a third person, the acknowledgement shall carry no force.24

EXPRESS OR IMPLIED ACKNOWLEDGEMENT

It is not necessary that the acknowledgement should be express; it may also be implied. Where a
person habitually and openly treat another as his legitimate child, this fact may give rise to a
valid presumption of legitimacy. Their lordship of the Judicial Committee in

Mohammad Azmat v. Lalli Begum25

Observed that it has been decided in several cases that their need not be prove of an express
acknowledgement but that an acknowledgement of children by a MOhammaden as his sons may
be inferred fron his having openly treated them as such.

In Zamin Ali v. Azizunnisa26 the husband acknowledged the marriage with a particular lady, after
his death it was disputed that the child as not the legitimate child of the deceased. It was held that
where marriage between a person and the child 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 daughter, but it must be made by the father. The
acknowledgement of the child must not be casual.

In Mohabat Ali v. Md. Ibrahim27 the father made the acknowledgement of the child in a casual
manner. He never intended that his acknowledgment should have serious effect. It was held that
the act of the father is not sufficient to confer the status of legitimacy.

24
Usman Myan v. Vali Mohd. (1916) 40 Bom. 28
25
(1831) 91 A. 8,18
26
AIR 19 All. 329
27
AIR 1929 PC 15

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 c) CONDITION OF A VALID ACKNOWLEDGEMENT

When a man, expressly or impliedly, acknowledges other as his lawful child, the paternity of the
child will be established in the man, provided, the following conditions are fulfilled:-

i. Intention to Confer Legitimacy- It must be a legitimate sonship. The acknowledgement

must be in such a way that it shows that the acknowledger is to accept the other not only
as his son, but as the legitimate son.

ii. Age of the Acknowledger- The age of the parties must be such that it may be possible
that they are father and son. According to Bailee, the acknowledger must be at least
twelve and a half yars older than the person acknowledged.

iii. Child of Other- The child so acknowledged must not be known to be the child of
another.

iv. Person acknowledged should confirm acknowledgement- The child, if adult, must
confirm, in acknowledgement. It is important for child to verify to acknowledgement
because if the child does not verify, an impediment is created and the child’s descent is
not established

v. Legal marriage possible between Parents of the child Acknowledged- The

acknowledger and the mother of the child must have been lawfully joined in a marriage at
the time when the child was begotten. Child must not be the fruit of an adulterous
intercourse. Similarly, if it is definitely proved that no marriage took place between yhe
parties, the issue will be illegitimate and acknowledgement will be ineffective.

vi. Competency of the Acknowledger- The acknowledger must be competent to make a

contract, that is, he should be adult and sane.

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vii. Offspring of ‘Zina’- An offspring of zina is one who is born either without marriage, or
of a mother who was marries wife of another, or of a void marriage.

Bailee says that when a man has committed Zina with a women, and she is delivered of a son
whom he claims, the descent of the son from the man is not established, and he cannot be
acknowledged. Therefore, the acknowledgement must be definite and the child must be
acknowledged to be the child of his body.

AN ACKNOWLEDGEMENT ONCE MADE CANNOT BE REVOKED.28

Rule of Legitimation by Acknowledgement

The rule of legitimation depends on the assumption of legitimacy and its establishment by
avoidance of the hypothesis of unlawful relation between the parents. This rule is based on
contractual form of marriage under Muslim Law, no ceremony is prescribed for a valid marriage.
It is also not necessary that the marriage should be published. Muslim law does not recognize
western concept of legitimation i.e., conception of a child outside wedlock.

Ashrufood Dowla Ahmed Hossein v. Hyder Hossein29

It was said that acknowledgement of paternity is a recognition not simply of sonship, but of
legitimacy as a son.

Effect of Acknowledgement

Acknowledgement of paternity raises in a twofold presumption

28
Asharfod Dowlah v. Hyder Hussain (1866) MIA 94
29
ILR (1888) All. 289

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  One in favour of son-claimant
 In favour of wife client

In the case of a son, it produces all the legal effect of a natural paternity and vest in child the
right of inheriting from the acknowledger.

In the case of a wife i.e., the mother of the acknowledged son, it has the effect of giving her the
status of legal wife and hence the right of inheritance.

ADOPTION NOT RECOGNIZED IN MUSLIM LAW

According to Manu adoption is the taking of the son, a substitute for the failure of male issue.
Thus it is the transplantation of the son from the family in which he is born, into another family
by gift made by his natural parents to the adopting parents. Islam does not recognize adoption.

In 1972, The Adoption of Child Bill was introduced in the Parliament in order to make an
uniform law of adoption applicable to all citizens of India regardless of their religion. However,
this bill was withdrawn by the Government in 1978 and could not be

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