ne 8 LEE SF =a eee e a ah, y, in some systems of law, the imate children is being blurred of legitimacy on illegitimate children,” yet, so long as the institutio _of marr’ I iage survives, some distinction between the two is bound to remain.?_} In Muslim law, on the one hand, the rules relating to legitimacy are fairly Tiberal,* and on the other, illegitimacy is condemned, and the woman guilty of having illicit relationship is punishable for zina. The Muslim law-givers condemned all sex relationship outside wedlock* as illicit and provided for its punishment. In the words of Coulson : "Islamic law embodies the principle of strict enforcement of sexual morality in the os punishment it prescribes for the offence of zina, or fornication, ae ne ts : law, a sexual relationship outside marriage is not a peed oI ae ee aggravated by circumstances such as lack of oe cea s seeaee girl, the blood relationship of the person concer’ ether teeedal kane lode which will amount to criminal offence of rape, u ero Talami@ lawn incest, bestiality, or sodomy [which is no longer ate ig a crime unless it is the other other handhelds tat er ns d wife, or was, in ve ems to have been serge in eer ie Mushm goane bly the ® ea 2 oe pares of sexual morality te eae nee ie ieee of the Se etant sexual anarchy in the a former, Abdul Rahim observes : "The parentage f a child is Se ss i father of @ the principle that it always follows the marital bed. The we Review >—___ = lahabad Law Ke stimate Child in Modern Lav 1909, Oe Cocndy of Mie 1. See author's article, The Hlegitimat Guaré San Siig cuthcea’ work, Parental Control, Gu ilies Chapter TX 2 Ibid. «not considered titPARENTAGE : ILLEGITIMATE np LEGITIMATE CHILOREN : ey direct proof of marriage, or ph opie Proof; Indirect Proof of marriage may aris ¥y the presumption of a y of prolonged and continuous cohabit ation, (By acknowledgement of acknowledgement of the child ag wma 88 DShip be : wife orb e child as one’s legitimat ite child. whether on the basis of prolonged and ig the entire period whi the child wae (hile ig, ald have been begotten, the offspring w ae ‘ ill not be legitimate, even if f of 3S Hingyi® bjqnged cohabitation, or of acknowledgement, is fortheoming al “elation! Pe /Legitimacy direct proof of marriage.—When a valid’ marriage ld, though the parents of the child is established, t BX be t then the child born of such SPonsibilit, marriage will be presumed to be legitimate. In order to confer the status of W ecognin jogitimacy on the children, Muslim law, like English common law, requires i ie conception should take place after the marriage, though the marriage @ person pe sahih, fasid or muta. This is most curious aspect of law of paternity eas of Law that, paternity is still a matter of legal “resumption, despite the great strides made in the medical science? The woman wy eeu etvere laid down the following three rules of presumption of pe peer when direct proof of marriage between the man and the mother of actual birth; ae é ‘ \d is available : th to thea the chil fl ix months ( firalat a (a) A child born after six . six lunar months plus one day he chil or more) of the marriage is legitimate, unless the father disclaims en the child ° i te - pe ee ws A child born within six months of the marriage is illegitimate pelid) oo unless the father acknowledges it. ete ae vine al 4 A child born after the termination of marriage is legitimate, r of the cht : e will not! born : () within ten lunar months under the Shia law, te (ii) within two lunar years under the Hanafi law, an ms b Gi) within four Tunar yents under the Maliki and the Shai ew) hip, i= or The reason as to why the Muslim law-ivers considered the peted 8 be a gestation to be as short as six months, and as long as four years, omedan 8 during ‘an® the outcome of the imperfect te ee Aa Se eee , or a mi! those times, or it may be that they leaned s ture Whatever i a evens fullest. allowance to any eee es Pema marria2";, explanation, plausible or otherwise, there Iy out-of-date, and should be existe? . presumption, it is, in our subi totally she Bividence Act, 1872 layt rect prot abandoned without any qualms {Sectiot MS ae ‘that any person Was bore ce." ion e i and any man, ee Se valid marriage between his mother Blood ish paternity. test, Jive to establish paternity. SSo- na aie ae : ‘though often used in the West, are als0 . 169), 78; See also + Minor 2. Ameor Ali, II, 193; Fyzee (3rd ed) 182; Coulson (1% Khan, 1924 Lah 477.8 MUSLIM LAW IN MODERN INDIA or within two hundred and remaining unmarried, shall bi of that man, unless it access to e: section lay; time, even goon after the marriage), or (ii) a child born within 2g9 da dissolution of marriage by death or divorce, will be conclusively pres be the child of his father, provided the mother remained unmarrieg 112 supersede the rules of presumption of Muslim law ? Som decisions still leave the eighty days after its dissolution, th e conclusive proof that he is the ps can be shown that the parties to the Maria ach other at any time when he could have be: en. begotten 8 down that : (i) a child born within the lawful Wedlock ;, Dee ud stion open. It is submitted that the better ,,, seems to be that it does. j in an early Allahabad case,* Mahmood J. si tion of great difficulty to determine how (S. 112} are to be taken as trenching vu may some day be a q provisions of that section pon, Muhammadan law of marriage, parentage, legitimacy and inheritance, wh departments of law under other statutory provisions are to be adopted rule of decision by the courts in British Indi: a." Since then, the Allahabad k= Court has held that S. 112 supersedes the tule of Muslim law.’ The Late High Court also took this view.‘ In two casi es,” it has been held that § applies to the Muslim marriage which is valid. The Chief Court of Oudh x the view that a valid marriage means a "flawless" Marriage, and hent: Muslim irregular marriage is not a valid marriage. It is submitted Muslim law which leans so heavily in favour i far iage. Under the English common law, a child of voidnbee ne ee acat became illegitimate retrospectively, but under Muslim af eve per ag Sarena age Fo Mee Iperlor cach, quot remains legitimate. Then Muslim Law bo word of law. In law, a marrisf is marriage; it may, under Muslim Law, be valid, irregular or void, but the ia notice ike 8 ee eee. nee te eBoy marriage or not! uarciages Nog, in Engieh Saw 22d es © legint’s Which follow Enalich I Cae en ee ie riatunicoaSnl kaye eat aay children of va# riage in ce : 7 Sa a e gi eyate. In their concern to avesd ate of void marriage a jtion even to temporary Eee The fact of the ‘cy they acco TRawweven when there was a semblance of r the, Batter seems t0 that ever to be marriage—the underlying idece® he M contraacy on the children of such unions. In this legi Perspectiy ft the status’ ©, thi, ; is ination of rules of Muslim to this writer fin = mwaspaseedPARENTAGE : ILLEGITIMATE ANO Lecrrin LEGITIMATE CH ae = ae [Es acknowledgement of paternity may b fi rene it gemed e Privy Council opined the ane, Pe. In aeration, rook of xpress acknowledgement, but that an hat there need not tee a ee met his child may be inferred from eee nt of a child ; ig, | eet ; . ng openly treated him ae fie The following conditions are necessary for a valid ack A mbere® Sor disprove Sldvahould be Ga Tete cian teas ‘that the child is illegitima ER timate faown 10 bo illegitimate, it cannot be mate Ifthe child is lawn Ee rere reich piebe core lowe "The Muhammadan law of Sckaswlalgersel peceitage Pol ores and legitimating Bee area tcreacearhataccton to case rete reritanee Geese ce the child io! provediand ostablished; at vate ? One reason of @ lawful union between the parents ruRen al eed pelled ta impossible (a3 in the case of an incestuou ee ae vife afte, Sea ceIty cela krviag' Schone ae ree arriage ne Bee eerie aiid Lopitinate heing disproved. The doctrine vel 4 hea oe nly to cases where either the fact of the Se erate te aerial exact time of its occurrence with reference to the aa ae Se Scknowledged child is not proved as distinguished from seared ecce Jn other words, the doctrine applies only to cases of Sacartaiaty a id : "The as to legitimacy, and in such cases acknowledgement has its effect Biried i but that effect always proceeds upon the assumption of a lawful Rea tinjon between the parents of the acknowledged child.” In this ye case, T, a Muslim, died leaving behind three daughters A, B and ae ia two sons P and Q. All of them were children of the same a er, M. It was an established fact that A, B, C and Q were Rianne born to T and M after their marriage. But it was not certain that ee P was born to M when she was married to T. F brought a suit ee against A, B, C and Q for his share in properties of T. It was nontl established that during his life time T had acknowledged P as his 1 legitimate son, that there was no proof of paternity of P, though paternity it was established that there was no legal impediment in the at a child marriage between T and M, and that it was not proved that P was egitimat® the offspring of zina. On these facts court held that since P was timate : acknowledged by T as his child, P has the status of a legitimate rved the! egitimat® The acknowledger must acknowledge the child as his legitimate antl oF and not just as his child. However, the ordinary rule that ledges when one person calls another as his son or daughter, he means a that bP to call him as his legitimate son or daughter, applies." But a casual acknowledgement of paternity not intended to confer the tion to confer status or legitimacy, will not be enough. The inten! 1893) 212 Cal 666 334. 2 Razak v. Age, | ‘Altaf Ali, 1922 PC 158; Abdool Razah ¥ yay; Md (1916)MustIM LAW IN MODERN INDIA 12 must be clear. the status of legitimacy and the acknowledged pers, oe ages of the acknowled@h™ Ft the father and the eh e such that they authority for the view that the ackyy,/ Soe da half years senior to the » should be at least twelve an! : inowinte) be the offsprin, edged must not be PrINg of ads, ie Mae tied Be) tina) This is, in fact, a corollary of cong eee ‘one. In all those cases, where the legal marriage betweo, ’ fanerit “~ acknowledger and the mother of Bie pecepicceed Person ig, Maja \ i i this child could have been cong, 4 4 possible at the time eben ie Neciact be sx 0? then such a child is a child of a: i, Ww as a legitimate child. Thus, in all those cases where the mars, jegiti” Aj of.the acknowledger and the mother of the acknowledged pe,, ps 7, (* would have been void, had it taken place, the child canng,,, ; yy validly acknowledged a legitimate child. In Rashid Ahma’ quslit van Anisa Khatun,} the child acknowledged was the issue of mari:, ult SH between the divorced persons. The husband had repudiated ;, wedll marriage in talak-ul-bidaa form and no intermediate marry, take and divorce of the woman took place. Thus, the marriage y, certa ras void. \Similarly, where the acknowledger’s marriage with (, moth mé of the person acknowledged was within the prohibi Mact degrees—prohibitions might be on the ground of consanguinit| the ¥ affinity or fosterage—the marriage being void, no vil it he acknowledgement can be made. The same is true of the «| Afve where it is proved that no marriage took place between t:| acknowledger and the mother of the acknowledged person wha begotten; the child in such a case wi be the issue of fornication lt acknowledgement can take place® But if pee oval Oe irregular, the child will be Tene aamicee fou The paternity of the person acknowl inignyoneelsalt edged must not be establish! we acknowledgement must acknowledged person.’ Under Miey, °° TePudiated by ‘ der Musi, attained the age of discretion ic pate @ person who hé transaction, has a right to repuds ility to understand thé Conversely, the ackno ee wledger, who is oe the acknowledgeme the age of discretion ci! 1. Abdool Razak v. Aga, (1893) 21 1A 56, 2. Habibur v. Altaf, (1921) 48 TA 114. 3. Baillie, 411. 4. Habibur v. Altaf, (1921) 48 IA 214; Sadiq v. Has 1932 PC 25. s™, 1816) 49 14 212; 5. 1932 PC 26, 3 Rashid v, Anis 6, 1932 PC 25. 7. Usmanmsya v. Md. Ismail, (1888) 10 AU 28: Ma a1PARENTAG TAGE ‘ILLEGITIMATE ay ND LEG TIMATE C4, af = confirm it or acknowledgement of acknowledged is nece ; ce an acknowledgement of en a valid acknowled cq) Bur of. = ion by Paternity is mad & a nsequerices nis from it: (erent of paternity ne We petween the acknowledger a: raises a presumpticn” nd t Presumption OS The acknowledger and the the mother of the person ciyvald mar oe inheritance. (c) The mutual rights rane Person any tektow ledge ae oye acknowledger and the mother of the See ties natal ig 2a) fos acknowledgment of plaintif as fone pra, legitim us giving him share in suit propere ht Mt ™ erty.* make him ing [ mlesitimacy —_— fuslim law subscribes to the notice that an illogitimn v ate child is filiu ling i nulius owing no nasab to either pai eS zeal to its logical end, and hold Sager on sche es wedlock is related neither to the father nor to the aie ae fel geesreneh Se ementTectatidipitthe view that an Megteae ake fe fegexporea)i such ‘as’ for feeding and nourishment, is rel roe ih; mother. For these purposes fe trina ner'eonfers some Vighta aa ti cahee |. Macnaughten said : "A bastard child belongs, legally speaking, ate {ai the parents and it is in every sense of the word filius nulius eae Pa Wehbe attained the age of seven years, be left in the charge Bf the athe he, After that age, it may make its own election with which of the parties it wil xen; reside, or it may live apart from them altogether." The mother has the pales of custody of her children till they attain the age of seven. Probably, in respect ow yer of daughters jt extends upto the age of puberty. Muslim law, it seems, confers i no obligation of maintenance of illegitimate children on either parents,’ un though the Hanafis recognize the obligation of nurture till the child attains even this obligation. Under ni the age of seven; the Shias do not recognize s any right of inheritance in th school of Muslim law an illegitimate child ha: Jaw, it seems, the mothe be property of his putative father.’ Under the Hanafi y | rights of inheritance. There is t and her illegitimate children have mutual c y | process recognized under Muslim law by which a status of legitimacy may | 0) conferred on an illegitimate child. ‘Muslim law also does not provide for t \(! guardianship of illegitimate children, but, it seems, in modern Lae yw judicial legislation, it has come to be established that guardians™P yp’ illegitimate child vests in its mothe a 3) 10 WR! TeCeR RTE danas An, 1960) 6 WR Mrocelun Bid t Cat ae 2. Ashrufooddowlah v. Hyder Hossein, (1866) 11 MIA 94; Md. (1888) 10 All 298. fe teembondt Must, 0910 45 1A 73. - 4 na Khan, AIR 2004 Kor