Legitimacy, Parentage and acknowledgement are the subjects of Personal Laws.

Every religious community in

India is governed by their own personal laws and so are the Hindu and Muslim community of this demographic
country. Each practice their own set of rules and regulations under their respective laws. This Article would cover
the provisions of Legitimacy, Parentage and Acknowledgement under Muslim Law.

The concept of parentage and legitimacy under muslim law are has a direct relation with the marriage of the
parents of the child concerned. Acknowledgement or Iqrar becomes an alternate modus operandi to render a child
legitimate when the conclusive proof of a valid marriage between the parents cannot be produced. Muslim law
recognises the concept of legitimacy, whereas section 112 of Indian Evidence Act recognises the concept of
legitimation per subsequens matrimonium. There is an ongoing conflict between these two provisions and whether
the latter provisions have the overriding effect over the former. There is a room for evaluation under Muslim law as
well as Indian Evidence Act to address the dire issues of legitimacy in the present scenario.

Keywords: Muslim Law, Legitimacy, Parentage, Acknowledgement, Presumptions, Adoption.

I. INTRODUCTION

Paternity i.e. the legal relationship between the father and the son, under muslim law is
established only if it is proved that the mother of the child was a legally wedded wife of its father
at the time of conception. Therefore, marriage between the parents is the only means to establish
paternity whereas maternity is established since the birth of the child and needs no proof. A child
would be considered illegitimate if the parents of that child were not under lawful wedlock. Both
parentage and legitimacy under muslim law is dependent on the marriage between the parents,
but it has to a valid or irregular marriage and not a void marriage. If the direct marriage between
the parents cannot be proved, then the father can establish an indirect marriage by
acknowledging the child as his own. So in a case where there is no conclusive proof of marriage
and the paternity of the child is in question, acknowledgement by the father can render the child
as his legitimate son. Acknowledgement under muslim law is also known as ikrar-e-nasab and
can either be implied or express.

II. CONDITION IN PRE-ISLAMIC ARABIA

The practice of adoption was in existence in Pre-Islmaic period. How the pagan Arabs used to
attach their odious name to any person who did not leave any male issue behind him shows the
importance of adoption in their lives. However, in certain circumstances it lacked religious
motives. For instance, an Arab legitimising his own son by a slave girl through adoption or a
tribe member adopting a refugee belonging to another tribe and making him a member of his
tribe, etc. Neither any ceremony nor any restriction as to the age of the adopted child, or the
absence of a natural born son to the adoptive father was known in pre-Islamic Arabia.

Adoption created interchangeable rights of inheritance between the adopted member and the
adoptive family, generally it was seen that the persons belonging to the prosperous group were
predilection at the time of adoption. Sometimes, a person rejects the request for adoption as he
suspected the hidden motives of the adoptive family.
Adoption prevailing at the time of ‘days of ignorance’ can be seen by the fact that Prophet
(PBUH) himself adopted Zaid who was the son of Haris as his son. But later on, he disapproved
of it by saying that the method of adoption prevalent in those days created no bond between the
adopted and the adopting as what developed from blood relationship.Hence, Muslim law doesn't
perceive the validity of any method of filiation where the parentage of the person adopted is
known to have belong to the person other than the adopting father. And it is acknowledgement
alone that Muslim law recognises as the only form of filiation. Only the father possesses the right
to certify the relationship to the complete exclusion of mother and additional relations.

III. LEGITIMACY AND NOT LEGITIMATION 

Legitimacy is inferred as a status arising out from certain facts whereas Legitimation is a process
of creating a status of legitimacy which never existed before. Muslim Law has no room for
legitimation. Facts which result in legitimacy in Muslim law include- Subsisting Marriage during
Conception and During Birth. An acknowledgement of a child is an announcement of legitimacy
and it has no relation with the legitimation. Hence an illegitimate cannot be made legitimate
under Muslim law. Legitimation per subsequence matrimoniam means Legitimation of the child
by conducting marraige between its respected parents which would work for the better interest of
the child, saving it from being an illegitimate offspring, is a principle of Roman law which is not
known to Muslim law. Muslim law recognises Iqrar i.e. Acknowledgement of paternity.

Privy Council has also distinguished between legitimacy and legitimation on similar grounds in
the case of Habibur Rehman v. Altaf Ali.  The Privy Council observed, 

Legitimacy is a status which results from certain facts but Legitimation is a process which
creates a status which did not exist before. In a proper sense there is no legitimation under
Muslim law. The adoption of the Roman and the Hindu law affected legitimacy. The same
was done under the canon law and the scotch law in respect of what is known as
Legitimation per subsequens matrimonium.

In Islam, a child is considered to be legitimate only when it is a direct outcome of the concept of
marriage. Those born outside the marriage are regarded as illegitimate. There is a very strict
adherence to sexual morality in Islam. Any kind of extra marital affair is condemned as zina and
is severely punishable. The parentage of a child is determined by the marital relation between the
parents of the child. The father of the child must be the spouse of the biological mother of the
offspring, and must be born in wedlock  i.e after six months or during the continuance of the
marriage. According to Hanafis, the time to fix the paternity of the child after the termination of
marriage is two years and whereas according to Malikis and Shafiis, the time to fix paternity of
the child after the termination of marriage is four years.

IV. PARENTAGE

Parentage in common parlance can be defined as the legal relationship of parents and their
children. Such relation of the child with father is termed as Paternity and with mother it is called
maternity. Maternity of a child need not be proved because soon after the childbirth she becomes
its mother no matter what is her marital status. The child, even if is an outcome of zina, can
inherit from the mother in the system of Sunni Laws. However under Shia laws, this concept of
maternity is not applicable. A child born out of adultery, fornication or incest under Shia law is
considered illegitimate and is devoid of maternity from her biological mother and consequently
he cannot inherit from her. Thus under the Shia system of law legal status is attached to
maternity and is a legal relationship.

To establish the paternity of the child there must be a tie of marriage between the man and the
woman. The marriage however could be valid or irregular, but not void. Neither sunni nor Shia
law give any credence to paternity if the marriage was void. It is therefore a de jure relationship
between the begotter and its child .

The fact of marriage is either proved by either direct proof or by presumption, the latter in three
conditions-

    i.       by  Prolonged cohabitation; 

  ii.       by acknowledgement by the father; or

iii.      by acknowledgement of the woman as his wife.

                    

Paternity can be determined through blood tests but it too has its own limitations. It is based on
the compatibility of a child's blood with that of the father but it can only establish that either the
man cannot be the father or that he may be, but never that he is. Further, blood samples can only
be taken with the consent of the person’s consent, and since it cannot prove legitimacy the
custodian may not give his consent for the test to avoid unnecessary mental disturbance.

V. LEGITIMACY 

Legitimacy of a child has a direct connection with  the paternity of the child, because the
maternity  is established ab initio i.e the time of child birth regardless of the legitimacy or
illegitimacy of the child. Only condition being that the marriage cannot be void. Thus when
paternity is established, legitimacy is also established.

The same has been very well explained through the leading case of Habibur Rehman Chaudhary
v. Altaf Ali Chaudhary. The Privy Council held, 

By the Mohammaden 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, an illicit
connection; and cannot be legitimate…Direct Proof of marriage may be available, if no such
proof is available then indirect proof of marriage may suffice. Now one of the ways of
indirect proof is by an acknowledgement of legitimacy in favour of the son.

Under Muslim Law the paternity of the child cannot be acclaimed through adoption. A muslim
man cannot adopt a child of whom he is not the biological father. Muslim Law is unfamiliar to
Adoption. It is expressly disapproved of by the Quran. Therefore there is no room for
legitimation under Muslim law. Nevertheless, in exceptional situations where there is no
substantive proof of marriage between the parents, acknowledgement by the father becomes the
only admissible resort.
In the case of Sadiq Hussain v. Hashim Ali, the court said 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
acknowledgment is substantive evidence that the person so acknowledged is the legitimate
son of the person who makes the statement, provided his legitimacy is possible.

Thus there exist two modus operandi for the establishment of parentage and legitimacy. They are
as follows:

1) By birth in the course of a regular or irregular marriage and not void according to Hanafis, or 

2) By Acknowledgement.

A. PRESUMPTIONS OF LEGITIMACY

There are differences between the presumptions in legitimacy between the Sunni’s and Shias.

Among Sunni’s, a child born following six months of marriage is considered to be legitimate
except when the father himself refutes it. The difference of further increases between Hanafi and
Shafi’i law,  According Hanafi School of law a child considered to be legitimate if it takes birth
within two years after the dissolution of marriage whereas Shafi’i and Maliki rendered a child
legitimate if born prior to four years after the termination of marriage. On the other hand Shias
considered a child to be legitimate if born within ten lunar months.  

In India s. 112 of Indian Evidence Act deals with the legitimacy of the child which presumes that
if the birth of the child takes place in the course of valid marriage or within 280 days after its
termination it would be considered as a legitimate child, except if it is established that the either
of the spouses had no access to one another whenever when the child could have been conceived.

Reasoning behind such presumption according to Baillie is that, 

The shortest period of gestation in the human species is six months,... and the longest is of
two years, according to Abu Hanifa who assigned this as the maximum on the authority of
Ayeshah who is reported to have said, as having received it from the Prophet himself, that the
child remains no longer than two years in the womb of its mother, even so much as the turn
of a wheel.

However the minimum and the maximum period of gestation have received criticism on the
ground that these aren’t testified by modern scientific theory of gestation and pregnancy. The six
months period i.e. lunar months is a little less than that of 180 days. Medical evidences
substantiates the minimum limit of gestation peoriod under muslim law. It is the maximum
period which draws the main criticism. Reason for such a long period of gestation could have
been the improper understanding of  gestation and pregnancy. They are rendered as out of date.

 
 VI. WHETHER SECTION 112 OF INDIAN EVIDENCE ACT OVERRIDES MUSLIM LAW
OF LEGITIMACY?

It is still not that Section 112 of Indian Evidence Act overrides Muslim Law of legimacy or not,
In Mohd Allahdad Khan v. Mohd. Ismail Khan, J. Mhamood observed, ‘It may someday be a
question of great difficulty to determine how far the provision of section 112 of this act is to be
taken as trenching upon Mohammaden law of marriage, legitimacy, inheritance…… Fortunately,
the difficulty does not arise in this case.’

Scholars like Mulla, Tayab ji oppose the concept of legitimacy of the child born within 2 after
the termination of marriage, they believed that it is in conflict with the natural period of
pregnancy.    

Difficulties arose if s. 112 of Indian Evidence Act supersede Muslim law are as follow:

a) Section 112 acknowledged the doctrine of legitimation per subsequens matrimonium whereas
Muslim law recognises the conception after marrige so if a child within second marriage in the
absence of evidence of non-access, legitimate under section 112, but according to muslim law it
would be illegitimate.

b) Section 112 does not recognise void marriage it contemplates a ‘valid marriage’, and if we talk
about Hanafi law marriages are either valid (sahih), irregular (Fasid) or void (Batil). Section 112
however does not cover such a type of marriage. Therefore if 112 was allowed to supersede
muslim law than classification of marriage in Muslim Law  will have to be made suited into
valid or void marriages.

c) Section 112 of Indian Evidence Act is procedural law it is not applicable on legitimacy which
is a part of substantive Muslim law.

In Abdul Rehman Kutty v. Aisha Beevi, when the child was born within 4 months of the woman’s
marriage because she concealed her pregnancy at the instance of marriage and was driven out by
the husband, it was held that because of the hidden illicit pregnancy, the marriage was void ab
initio therefore no presumptions under section 112 of Indian Evidence act could be applied. The
court was of the view that section 112 is not pertinent to an irregular marriage, because an
irregular marriage does not come under the purview of a valid marriage under this section; valid
marriage has to be a flawless marriage. This approach has been criticised by Paras Diwan on
ground that under Muslim law there exists no flawless marriage and a child from a fasid
marriage would remain legitimate even after its termination. He was of the belief that if this
section is applied it will promote the  purpose of Muslim Law inclining in favour of legitimacy.
Therefore,it can be concluded that a child whether born on the very next day of marriage or
within 280 days of its termination would be considered as legitimate (in terms of section 112).

The most important irreconciliable points between the muslim law and section 112 of the Indian
Evidence Act is the very foundation of legitimacy which as per Muslim law is the juncture of
conception and under the Evidence act is the birth. Until the Apex court gets to settle the dispute,
there would remain inconsistency regarding the law.

VII. ACKNOWLEDGEMENT OF PATERNITY

Acknowledgement (Iqrar) is way to establish legitimacy in Muslim Law in cases where the status
of marriage between the parents has neither been proved nor disproved. Acknowledgement may
be expressed or implied. An express acknowledgement entails a formal declaration, whereas in
implied, it is assumed from the fact that the father has ordinarily regarded it as his legitimate
child.

In  Mohd. Allahdad Khan v. Mohd. Ismail Khan, J. Mahmood observed,

Where the Paternity of the child, that is, his legitimate descent from his father cannot be
proved by establishing a marriage between his parents at the time of his conception or birth,
the Mohammaden law recognises ‘acknowledgement’ as a method whereby such marriage
and legitimate descent can be established as a matter of substantive law for purposes of
inheritance.

No provision of Acknowledgement under the Mohammadan law talks about the illegitimacy of
the child. It only deals with two instances, first is when there is no proof of the marriage present 
or the accurate time of the happening of the marriage is unable to be determined. 

However the position under the Hindu law of adoption is different. The court in Ganga Sahai v.
Lakhraj Singh was of the view that adoption in its fundamental form can be established as a gift
of the adopted child from the real parents to the adoptive parents. There is no prerequisite under
Hindu law of adoption that the adopted child should be the biological son of the adoptive father.
Moreover, for religious reasons it is only the male child that can be adopted. None of the main
categories of adoption as per hindu law is common to Muslim law, for there acknowledgement of
parentage proceeds with the theories of the actual descent of the acknowledged child from the
father who acknowledges it, and such descent being the result of a legitimate intercourse
between the parents.

B. STATUS OF AFFAIR OF VALID ACKNOWLEDGEMENT

1. Unknown Paternity

a) Fact Or Exact Time Of Marriage Is Uncertain: Since marriages under muslim law can be
constituted without any ceremony, it becomes difficult at times to produce direct proof of the
marriage. In such conditions where direct proof is unavailable, acknowledgement of legitimacy
of a child is the indirect proof of the marriage.

 b) Paternity Neither Proved Nor Disproved: it is necessary that marriage between the parents
must neither be proved nor disproved. It must be in a state of not proved, i.e. capable of being
proved or disproved.

2. Intention to grant the legitimacy

Acknowledging a child as a son should indicate accepting him as a legitimate son is the        
general principle of the law. The same is applicable in the muslim law also. However there must
be an express intention to acknowledge  a child.
 In Habibur Rehman v. Altaf Ali, the Privy Council states ‘Acknowledgement must be not merely
of sonship, but must be made in such a way that it shows that the acknowledger intended to
accept the other not only as his son, but as his legitimate son.’

3. Proper age difference between the  acknowledeger and the acknowledging  person.

    There has to be an age gap of at least of  12 ½ years between the acknowledged person and
the  acknowledger as it is the minimum period of puberty of a youth. It is necessary because if
the acknowledger has not attained, the acknowledgement would be falsified obviously.

4. Legal Marriage must be possible.

The relationship between the parents of the acknowledged should be such so as to not fall under 
the prohibited degree of relationships. Such absolute prohibitions can be established by –
Consanguinity, Affinity, fosterage and Polyandry. However, if the parents are within the relative
degree of prohibitions making the marriage irregular but not void, the acknowledgement would
be valid. In Rashid Ahmad v. Anisa Khatun, acknowledgement in question was of a child born to
the parents who were remarried after triple talaq. The wife was given Triple talaq and without
undergoing a second marriage with another person, the spouses remarried with each other. The
second marriage being void, valid acknowledgement could not be given to the child.

5. Acknowledged child must not be an offspring of zina.

If a child’s birth takes place either without marriage, or the mother of the child was the wife of
some other man, or marriage between the parents is void, the child was considered to be the
offspring of Zina. The descent of a son from a man who has committed zina cannot be
established and he cannot be acknowledged.

6. Acknowledged must be unknown to be an offspring  of  another.

The Muslim law assumes that the child which is going to be acknowledged is the biological issue
of the acknowledger from a lawful union. Therefore a child can never be acknowledged under
muslim law if it is known that it is the child of some other person.

7.   Acknowledged must not repudiate the Acknowledged.

It is a condition that the acknowledged child should verify acknowledgement, because the
absence of a child’s verification creates an impediment. A child’s descent is not just established
by acknowledgement, but demands proof. No such verification is essential if the child is too
young.

C. REBUTTALS OF ACKNOWLEDGEMENT

The presumption of paternity through acknowledgement can be rebutted on the following

grounds-

i)             If the person acknowledged as a son by the father subsequently disclaims or refutes

the acknowledgement, it becomes ineffective.
 ii)         If it is proved that the acknowledged son is the real son of another (i.e. he is the
biological son of another person), the acknowledgement becomes null.

iii)       When it is proved that at the instance when the child was being conceived, the
mother was not the legally wedded wife of the father of the acknowledged. As in the case
of Rashid Ahmad v. Anisa Khatun, when the child was conceived when the couple were
under a lawful marriage, acknowledgment was held to be void.

iv)             If the age difference between the acknowledged son and the father is less than that
of 12 ½ years, the acknowledgement cannot be accepted.

D. EFFECTS OF ACKNOWLEDGEMENT

i) Acknowledgement of child means acknowledgement of wife also.

ii)  It raises the presumption of marriage.

iii)It gives rights of inheritance to children, parents and wife.

iv)  Acknowledgement once made is irrevocable.

VIII. POSITION OF ADOPTION IN MUSLIM LAW

Though the concept of Adoption is alien to Muslim Law, in certain circumstances it can be
applied. It was a custom practiced in states like Punjab and Oudh before the Shariat Act, 1937
came into effect. If an Indian Muslim who is capable of entering into a contract under section 11
of the Indian Contract Act declares under section 3 of the Shariat Act that he and his descendants
would be regulated by the Muslim Personal Law (Shariat) Application Act, the custom of
adoption would cease to apply to him. But if a convert does not declare such a thing, he would
still be governed by the customary law. But the tradition of adoption would only be valid if it is
based on special family or tribal custom. Moreover, the list in the Shariat Act excluding the
subjects from the application of the customs in India does not include Adoption. Therefore the
person claiming such custom will have to prove its substantive existence. Thereafter the custom
of adoption would override the general Muslim Law.

IX. CONCLUSION

It may be safely concluded that as per Muslim Law the custom of Adoption is not known as the
list in the Shariat Act excluding the subjects from the application of the customs in India does
not include Adoption. It is forbidden by the Quran. Thus legitimation is not practised in Islam.
Moreover, Legitimacy of a child is unequivocally linked with paternity. For a child to be
legitimate there has to be a lawful marriage, either valid(sahih) or irregular(fasid) but not
void(batil) between its parents. Neither sunni nor Shia law give any credence to paternity if the
marriage was void.
There is a need to revisit the interpretation of the term valid marriage under section 112 of the
Indian Evidence Act 1872 for its application on subjects of Muslim Law. Considering the kinds
of marriage i.e. Valid and Irregular, recognised by the muslim law of legitimacy and
acknowlegement, mere recognisation of valid marriage under section 112 would render the child
borne out of irregular marriage as illegitimate. Furthermore, the maximum period after the
dissolution of marriage within which if the birth of the child takes place would recognise it
legitimate is 2 years amongst the hanafi and 4 years  amongst the shafi'i and maliki, is not
scientifically justifiable whereas 280 days under the Indian Evidence Act is scientifically ratified.
Therefore, Muslim Law should adopt the maximum period as prescribed by the Indian Evidence
Act.
 
In cases where the status of marriage between the parents has neither been proved nor disproved,
where there is no direct proof of marriage, Acknowledgement or Iqrar by the father can establish
legitimacy. However the son recognised by the father must not be an outcome of Zina. There are
six other prerequisite conditions that have to be fulfilled for the acknowledgement to become
effective. Acknowledgement, thus in Muslim Law saves a child from the status of being
illegitimate and safeguards the interests of the child and also the right of inheritance of the child
along with its parents and the wife of the acknowledger.