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Legitimacy of Children

Islamic Family Law (Universiti Teknologi MARA)

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Legitimacy of children

- An illegitimate child is one who is born by an act which is unlawful according to Hukum
Syarak.

Hadith

- There shall be no legitimacy except in wedlock and the adulterer has nothing but punishment
and repentance.

Paternity in Islam may be established through three ways.

1. By marriage

Shafie & Section 110 of IFLA 1984 (also Section 113)

- If a child is born (a) 6 months born after marriage, or (b) 4 years born after death/divorce, then
the child shall be subscribed to the previous father.

Shafie & Section 111 of IFLA 1984 (also Section 113)

- However, if a child is born more than 4 years after the death/divorce, then the child shall not be
subscribed to the previous husband, unless he asserts that the child is his.

Section 112 of IFLA 1984 (also Section 113)

- If after iddah, the woman did not remarry but gave birth within 4 years, then the legitimacy of
the child shall be subscribed to the previous husband.

Haji Ghazali v Asmah

- The court held that the child was legitimate & ordered the husband to pay maintenance for the
child because the child was born more than 6 months after marriage (married – 1974 and divorce
– 1975), and the husband did not take soonest step to deny the child but merely did so as defense
against the wife’s claim.

Salim v Masiah

- The court gave judgment for the wife, who claim for maintenance for her child, because the
child was born more than 8 months after marriage and the wife was in fact pregnant during the
marriage.

Wan Azmi v Nik Salwani

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- The court attached the legitimacy of the child to plaintiff because the child was born more than
6 months from the date of sexual intercourse between parties, so, the plaintiff has to pay for the
maintenance.

2. By acknowledgement

- In theory, it is not a process of legitimation but a formal recognition of a status of a legitimacy

and only applicable in cases of uncertainty.

Section 114 of IFLA 1984

- Conditions for a valid acknowledgement of man to a child, either expressly or impliedly, are;

a. paternity of the child is not established in anyone else;

b. the ages of the man and the child are such that filial relationship is possible;

c. where the child is of discreet age, the child has acquiesced in the acknowledgement;

d. the man & the mother of the child could have been lawfully joined in marriage at the
time of conception;

e. the acknowledgment is not merely that he/she is his son/daughter, but the child is his
legitimate son/daughter;

f. the man is competent to make a contract;

g. the acknowledgement is with the distinct intention of conferring the status of

legitimacy;

h. the acknowledgement is definite and the child is acknowledged to be the child of his
body.

3. By evidence

- Normally arises when a wife alleges that the child is hers where her husband rejects such
allegation. In such cases, the wife may bring evidence to prove her allegations by producing 2
female witnesses.

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Hanafi

- 1 female witness is sufficient

Shafie

- minimum is 4 female witnesses

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