FAMILY LAW ASSIGNMENT 2

Student’s Name : LAKSHMIPRASAD A N

Student ID : 20191BCL0008
Course : FAMILY LAW
Course Instructor : PROF. DEVI PRABHA

1. Explicate the establishment of paternity and maternity along with the

rules regarding the presumption of legitimacy under Muslim law.
In Muslim law maternity of a child is established in the woman who gives birth
to the child, irrespective of the fact whether she is married or unmarried, or the
child is the off spring of zina. Thus, it is the actual birth of the child which
determines maternity; the woman who gives birth to the child is its mother.

The paternity, on the other hand, is the legal relationship between the man and
the child which comes into existence when the child is born within the lawful
wedlock, i.e., to the woman who is his wife.

The marriage of the man with the mother of the child may be sahih (valid) or
fasid (irregular). But if the marriage is void, no father-child relationship comes
into existence. Similarly, if the man commits zina with the mother of the child,
then the child has no legal relationship with him, i.e., he will not be considered
to be the father of the child.The following are certain presumptions about
legitimacy and parentage under Muslim law.

1. 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.

2. A child born after six months is legitimate. However, the putative father can
disclaim the child by the use of lian.

3. 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

In India, the legitimacy of any child no matter his religion is decided by the Indian
Evidence Act, 1872. This act states that a child will be legitimate if,
1. Is born in the continuance of a valid marriage between the mother of the
child and any other man (need not be the father of the child)

2. Is born after 280 days of the dissolution of the marriage as long as the
mother did not remarry in such a time.

2. Explain the disqualifications for termination of the guardianship.

General Disqualification-A person fails to act as a guardian if he is:

Minor

If the person is non-Muslim. In such a case the other parent will get the custody
or guardianship of the child.

Disqualifications concerning males- It is a general rule of Muslim law that no

male qualifies for the care or guardianship of a female minor who isn’t
identified with him inside the restricted degree of relationship. There is no such
notice of this preclusions either in the Shia Books or in the Guardians and
Wards Act. The Court is required by section 25 of the Guardians and Wards Act
to be guided in selecting or announcing guardian by what seems, by all
accounts, to be for the well-being of minor.

Disqualifications concerning females- A female is disqualified as guardian of a

minor child if she is unchaste or unethical, has married an unfamiliar person,
lives at a place far away from the father, dismisses or do not take proper care
the kid.

Disqualifications concerning parents-In case of guardianship of person of

minor, the court cannot appoint a guardian when the minor’s father is alive as
he is the natural guardian of the child. His guardianship can only be interfered
by the court in the cases when he is immoral in character or actions or if he
enters into a contract to the contrary or is outside the ambit of the court or
expects to travel to another country. On the other hand, mother does not lose her
guardianship in case of divorce by the father.

Disqualification concerning the husband- The husband under the Muslim law

isn’t qualified for the custody or guardianship of his minor wife in inclination to
her mother except if she achieves puberty or to such age as would grants the
culmination of marriage. The mother is entitled to the custody of the minor
married girl as against her husband