ACKNOWLEDGEMENT OF PATERNITY IN MUSLIM LAW

In India, our judicial system still allows the practice of personal laws. This means, that every
religious community or group can practice and follow the rules and regulations of their own
laws, up to a certain point. One such prevalent law in India is the Muslim law or Islamic law.
Let us look into Legitimacy and Parentage under Muslim Law.

Legitimacy and Parentage under Muslim Law

How is Paternity Established?

Paternity is the relationship between a child and his paternal figure, i.e. his father. Parentage
under Muslim law is not a matter of fact. The only way to establish paternity is by marriage
to the mother of the child. So as per Islamic law, maternity is by fact but paternity can only
be by marriage. Hence, if there is no marriage between the mother and the father of the child,
then such a child is illegitimate. And as per Sunni Law, such child has no paternity. And
according to Shia Law, such a child has neither paternity nor maternity. By conclusion
parentage under Muslim law is only available to a legitimate child.

Legitimacy under Muslim Law

The legitimacy and parentage under Muslim law are closely related to marriage. So a child
will be considered legitimate only if he is born in lawful wedlock. This means that the father
(begetter) and the mother (bearer) of the child should have been in a valid lawful marriage at
the time of conception. Then the child will be a legitimate child with established paternity
and maternity.

Hence under Muslim law, only direct or indirect marriage between the begetter and the bearer
of a child can establish the legitimacy of children. If there is not a lawful and direct marriage
between the said people, then an indirect marriage can be established if,

 There is cohabitation of the father and the mother

 The father acknowledges the mother as his wife
 The father acknowledges the child as his own. So if the marriage cannot be proven
between the father and mother, or there is a doubt as to the paternity of the child, the
father can choose to acknowledge the child as his own. This is true for both sins and
daughters. It is known as ikrar-e-nasab. Also, such acknowledgement need not be
expressed, it can also be implied by conduct.

Presumptions about Legitimacy

The following are certain presumptions about legitimacy and parentage under Muslim law.

 A child born before six months of a marriage is considered illegitimate. However, the
father can acknowledge such a child to change the legitimacy status.
  A child born after six months is legitimate. However, the putative father can disclaim
the child by the use of lian.
 A child born after the dissolution of marriage is legitimate if he is born within 10
months as per Shia law or 2 years as per Hanafi Law.

Principle of the Doctrine of Legitimacy by Acknowledgement:

This is a special mode prescribed by Muhammadan law for establishing the legitimacy of a
child and the marriage of its mother. Since a marriage among Muslims may be constituted
without any ceremony, the existence of a marriage in a particular case may be an open
question. If no direct proof of such marriage is available, indirect proof may be relied upon.
Acknowledgment of legitimacy of a child is one of the kinds of indirect proof.

Thus, under certain conditions, if a Muslim acknowledges a child to be his legitimate child,
the paternity of that child is established in him. But the doctrine applies only to cases where
the fact of an alleged marriage is an uncertainty. It cannot be availed of to legitimise a child
who is known to be illegitimate. The doctrine of legitimacy by acknowledgement proceeds
entirely upon an assumption of legitimacy and establishment of legitimacy by the force of
such acknowledgement.

Thus, under certain conditions, if a Muslim acknowledges a child to be his legitimate child,
the paternity of that child is established in him. But the doctrine applies only to cases where
the fact of an alleged marriage is an uncertainty. It cannot be availed of to legitimise a child
who is known to be illegitimate. The doctrine of legitimacy by acknowledgement proceeds
entirely upon an assumption of legitimacy and establishment of legitimacy by the force of
such acknowledgement.

Conditions of a Valid Acknowledgement of Legitimacy:

Muhammadan law prescribes a special mode of establishing the legitimacy of a child. When
a man either expressly acknowledges, or treats in a manner tantamount to acknowledgement
of, another as his lawful child, the paternity of that child will be established in the man,
provided that the following seven conditions are fulfilled:

1. The acknowledger must possess the legal capacity for entering into a valid contract.

2. The acknowledgement must not be merely of sonship, but of legitimate sonship.

3. The ages of the acknowledger and the acknowledged must be such as to admit of
the relation of parentage, i.e., the acknowledger must be at least twelve-and-a-half
years older than the person acknowledged.

4. The person to be acknowledged must not be the offspring of intercourse which

would be punishable under Muhammadan law, e.g., adultery, incest or fornication.
5. The parentage of the person to be acknowledged must not be unknown, i.e., the
child to be acknowledged must be known to be the child of some other person.

6. 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.

7. The acknowledger should be one who could have lawfully been the husband of the
mother of the child, when it was begotten. Thus, where there is direct proof that there
was no marriage between the man and the mother of the child, or that if there was
such a marriage between them, it would have been void, and then the presumption of
legitimacy cannot be raised by acknowledgement, however strong such presumption
may be. (Rashid Ahmed v. Anisa Khatun, (1932).

In Rashid Ahmed’s case, A, a Muslim, divorced his wife B, by three pronouncements

of talak, but afterwards, continued to cohabit with her, and to treat her as his wife for
fifteen years. During this period, five children were born to them, all of whom he
treated as his legitimate children.

However, the Privy Council held that the children were illegitimate. In this case of
divorce by three pronouncements, before A and В could remarry, В should have been
married to another man in the interval and divorced by that man. As there was no
proof of such marriage with another man and a divorce by him, a presumption of
remarriage between A and В could not be raised, and hence, the children were held to
be illegitimate, and could not inherit from their father.

The observations of the Allahabad High Court on acknowledgement of paternity in

Muhammad Allahabad v. Muhammad Ismail (1888-10- All. 289) are relevant. In that
case, the Court observed-

“The Muhammadan 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 reason of a lawful union between the parents of the
child being impossible (as in the case of an incestuous intercourse or an adulterous
connection), or by reason of a marriage, necessary to render the child legitimate,
being disproved. The doctrine relates only to cases where either the fact of the
marriage itself or the exact time of its occurrence with reference to the legitimacy of
the acknowledged child is not proved in the sense of law, as distinguished from
disproved. In other words, the doctrine applies only to 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.”
Acknowledgement in Muslim Law

Muslim law does not recognise the institute of adoption, which is recognised by other
systems.

Muslim law recognises the institution of ‘IKRAS’ (acknowledgement) where the

paternity of a child, which means his legitimate decent from his father, cannot be
proved by establishing a marriage between his parents at the time of conception of
birth. Muslim law recognises acknowledgement as a method whereby such marriage
and legitimate decent can be established as a matter of substantive law for the purpose
of inheritance.

Mohammed Allahdad Khan vs. Mohammed Ismail Khan (1887)

Justice Mehmood held that where marriage cannot be proved by direct evidence and
no legitimacy be established, Muslim 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 Muslim law is a rule of
Substantive Law and not a rule of evidence. It means it is not a presumption under the
Evidence Act. It confers the status of sonship and rights to succeed. A child whose
illegitimacy is proved by reason of the union between the parents not being lawful;
such a child cannot be proved by acknowledgement.

BY- UTKARSH SINGH LODHI