This article is written by Rachel Sethia. It begins with the discussion of sources of Muslim laws, which are divided into primary and secondary sources, and it further discusses the concepts of parentage, legitimacy, acknowledgement, and illegitimacy under Muslim laws. By discussing both concepts at length, this article aims at providing a simplified understanding of these concepts.
Table of Contents
Introduction
Personal laws, such as Muslim laws, continue to be applied independently within the Indian legal framework. Sunni law and Shia law are the two major sects that make up Muslim laws. In India, the majority of the people of the Muslim community are governed by the provisions of Sunni law.
The following is followed to breakdown parentage under Muslim laws:
- Maternity: It is easier to establish the mother of the child as it is based on biology, that is, the woman who gave birth to the child is the mother.
- Paternity: To establish fatherhood, it required marriage of the man to the mother at the time of birth of the child.
The two concepts of parentage and legitimacy are crucial to understand, as these two concepts result in the foundation of the legal rights and duties of the children and their parents. These concepts are made out of doctrines and principles that have a huge impact on the social and legal status of an individual. Parentage is used for legal relationships that the child has with his/her parents. These relationships are associated with some rights and duties, such as inheritance, maintenance, and guardianship.
Sources of Muslim Law
The sources of Muslim law can be divided into two parts:
Primary sources of Muslim Law
The primary sources of Muslim law are as follows:
- Quran: The Quran is the holy book of Islam, which is considered to be the ultimate source of Islamic laws. It is seen as God’s direct words recited to Prophet Mohammad, and even though it focuses more on religious and moral guidance than the specific rules, it is still said to be the foundation of Islamic laws. It is the original and first code of Islam. The Quran lays the foundation for marriage being the cornerstone for legitimacy. A child born out of a valid marriage is automatically considered to be legitimate.
- Sunnah: It is the teachings and practices of the Prophet Mohammad. It is the second source of Islamic laws after the Quran. The idea behind acknowledgement came from Sunnah. It offers guidance where the Quran does not. Sunnah has three forms, namely:
- Sunnat-ul-Qual: things that the Prophet said
- Sunnat-ul-Fail: things that the Prophet did
- Sunnat-ul-Tahrir: things he proved by remaining silent
- Ijma: A problem arose when the Prophet died; the problem was that the Quran and Sunnah did not include everything, so this problem was solved by Islamic jurists (they were known as Mujathids), and these jurists gave their opinion on the question of law. Their opinion is known as Ijma; once a valid ijma is constituted, it is considered to be equivalent to the Quranic verse, which makes it binding on the Islamic people.
- Qiyas: It is the Islamic reasoning by analogy; in other words, it means to compare a thing to a certain standard. In circumstances where the Quran, Sunnah, and Ijma don’t have clear answers, scholars can go to Qiyas. Qiyas is less significant as it is a method of deduction to discover the law and not to be a new law.
Secondary sources of law
The secondary sources of Muslim laws are as follows:
- Judicial precedents: It means the procedure which the judges follow by referring to the already decided case in a relatively similar case. Muslim laws don’t quite rely on past binding precedents. Judges in Islamic law did not have to follow each other’s rulings. Fatwas are the legal and moral pronouncements by scholars and are the closest thing to precedents, but the judges are not even bound by Fatwas. But the Muslim legal system has evolved with time, and this has made a change in the rule of precedents, as the modern Muslim legal system does incorporate the idea of following past rulings to a certain extent. Over the years, judicial precedents have been passed pertaining to legitimacy and acknowledgement, which have been discussed in the latter part of this article.
- Legislation: Islamic legal matters have traditionally been handled through primary sources as mentioned above (religious sources like the Quran and Sunnah). The change in time and the need of society called for an update in the Islamic legal system. For example, some family law practices seemed to be outdated and unfair to the Islamic women. Therefore, to overcome such difficulties, some legislation like the Dissolution of Muslim Marriage Act, 1939, was made, which turned out to be a breakthrough in Islamic laws, and after this, many more Islamic-specific legislation came into force.
- Customs: Islamic laws have their core sources like the Quran and Sunnah, but they are also allowed to follow the local traditions as long as they do not directly oppose Islamic principles. Prophet Muhammad has said to accept the customs, as during the earlier days Islamic laws were not fully formed, so people used to rely on traditions and customs to deal with everyday issues. Essential elements for a valid custom are as follows:
- Not against anything clearly mentioned in the Quran or Sunnah.
- Regularly practised by the community
- Fair and reasonable
- Justice, equity, and good conscience: Islamic law has a concept called Istihsan of Jurist Equity, which means liberal construction; in other words, it means finding fair and just solutions even if it requires some creative interpretation of existing rules. This notion of equity was adopted in most of the matters handled by British courts under Muslim laws.
Parentage and legitimacy under Muslim Law
Parentage
Parentage is the relationship between the child and his/her paternal and maternal figure, and to determine the rights of a newborn child, the concept of parentage comes into the picture. The concept of parentage is intertwined with the legitimacy of that child. Under Muslim laws, parentage is not a matter of fact.
Therefore, if a man and woman are not married and a child is born, then that child will be considered to be illegitimate.
The concept of parentage for an illegitimate child is different in both Shia and Sunni laws, which are as follows:
- Sunni: Under Sunni laws, the child will not have a father and will only have a mother who gave him/her birth.
- Shia: Under Shia laws, in some interpretations, simply knowing the biological mother of a child is not enough; witness testimony or other evidence is sometimes considered to be necessary.
Legitimacy
Legitimacy under Muslim law refers to the lawful birth of a child within a valid marriage. Legitimacy is crucial for determining rights like guardianship and inheritance. Legitimate children are entitled to guardianship and inheritance according to the prescribed rules, and illegitimate children are excluded from these rights.
One of the landmark judgments under this concept is the case of Habibar Rahman Chowdhury vs. Altaf Ali Chowdhury (1918). In this case, the Calcutta High Court held that it is mentioned in the Muslim law that a son to be legitimate must be the offspring of a man and his wife; any other offspring is the offspring of an illicit connection and cannot be legitimate. When the term ‘wife’ comes up, it implies marriage; on the other hand, it is not necessary that every time someone gets married they have the formal wedding ceremony; therefore, proving that the marriage took place can be difficult sometimes. Indirectly, the marriage can be proven when the father acknowledges the child as his own, which makes the child legitimate. Hence, this acknowledgement helps as evidence to prove their marriage as well.
It can be seen from this case that it is the core principle under Muslim law that a valid marriage must exist between the parents of the child to prove the legitimacy of the child, and children born out of wedlock are not considered legitimate.
Presumptions about legitimacy
Following are the rules regarding the presumption of legitimacy:
- Time of birth: A child born within six months of the marriage is presumed to be illegitimate. On the other hand, if the child is born after six months of marriage, the child is presumed to be legitimate.
- Time of birth after divorce: Under Shia laws, a child born within 10 months of dissolution of marriage, and in Sunni laws, a child born within 2 years of dissolution of marriage is presumed to be legitimate; anything beyond leads to the presumption of illegitimacy.
- Legitimacy presumed from presumptive marriage: Where certain circumstances give rise to the presumption of marriage, they also give rise to the presumption of legitimacy of the child. Like in the case of Mohammad Baukar vs. Sharfunnisa, it was held by the Privy Council that the legitimacy or legitimation of a child of Mohammedan parents may properly be presumed or inferred from circumstances without proof or at least any direct proof, either of marriage between the parents or any formal act of legitimation.
In the case of Habibur Rahman Chowdhury vs. Altaf Ali Chowdhary (1918), the Calcutta High Court held that legitimacy is the fact that a child is legitimate under Muslim law, whereas legitimation is a process to confer legitimacy upon one who was never a legitimate child, which is unknown in Islamic law.
Indirect marriage (Shubha)
Another pertinent concept to understand under this head is the concept of indirect marriage under Muslim law called Shubha. This concept leads to the establishment of legitimacy under certain conditions, even if the formal marriage ceremony has not taken place. The following are the essential elements to establish indirect marriage (shubha):
- Cohabitation: The father and mother of the child have lived together for a while; society has had an impression of them being married.
- The father of the child owns up to the mother: The father has to acknowledge the mother as his wife. This can be in any way, like showing that they are married, accepting in writing, or saying it out loud.
- Father claims the child: This concept is known as Iqrar-e-nasab under Muslim law. This is the same as the father owning up to the mother of the child.
Acknowledgement of paternity (Iqrar-e-nasab)
In layman’s terms, this concept is known as an acknowledgement of paternity, which in simpler terms means that the father has accepted the child as his own under cases in which the legitimacy of the child is under question. This acknowledgement alone can establish a valid marriage and also the legitimacy of the child. The acknowledgement can be expressed or implied, and under circumstances where a third person is proved to be the father of the child, then the acknowledgement will not be considered. An acknowledgement once made cannot be revoked.
In the case of S. Amanullah Hussain vs. Rajamma (1977), the plaintiff filed a suit against the defendant Rajamma, wife of the deceased, on the ground that she was only a maidservant of the deceased and was living in the same house with him. She was not a legally wedded wife, nor is the second defendant his son. In this case, the court held that the marriage can be established by indirect proofs that can be by presumption drawn from certain factors. It may be presumed from prolonged cohabitation or from acknowledgement of legitimacy in favour of a child.
The following are the conditions that fulfil acknowledgement:
- The person making the acknowledgement shall be adult and sane.
- The person being acknowledged shall be 12 and a half years old of the person being acknowledged.
- A marriage between the acknowledging person and the mother of the child is to be proved.
- If the person being acknowledged is an adult, he/she shall accept and confirm the acknowledgement.
- The child being acknowledged shall not be known to be the child of another person.
- The intention behind acknowledgement shall be to achieve legitimacy.
The effects of acknowledgement can be divided into two parts, which are as follows:
- Effect for the child: The child will gain legitimacy out of the acknowledgement, which will lead to a positive effect for him/her, like inheritance rights, which will give the child a legal right to inherit from the father’s estate.
- Effect on mother: This acknowledgement will make the mother a legal wife in cases where the formal marriage did not take place, and the legal wife shall also get inheritance rights from the acknowledgement.
- Effect on father: This acknowledgement cannot be revoked, so this will create a legal bond between the father and the child and will also give legal recognition as the father of the child.
Expressed or implied acknowledgement
Under Muslim law, acknowledgement of paternity can be either explicit or implied. In the scenario of expressed acknowledgement where a father habitually treats and recognizes another person as their child, the child is not required to provide further proof. This behaviour of the father itself creates a strong presumption of legitimacy.
Another important factor under acknowledgement is that the person who is acknowledging a child shall be aware of the effects of acknowledgement, as the same was stated in the case of Mohabbat Ali Khan vs. Muhammad Ibrahim Khan (1929).
In the case of Muhammad Azmat vs. Lalli Begum (1831), it was held by the Privy Council that acknowledgement made in front of a single person is also admissible in the court of law to establish a child’s legitimacy. In case the father dies, the sole testimony of the person in front of whom the father has acknowledged his child will be considered to be crucial evidence to prove the same.
Difference between acknowledgement and adoption
In adoption, the child being adopted is known to be the son of some other person, while on the other hand, one of the essential ingredients of acknowledgement is that the child being acknowledged shall not be known to be the child of some other person. Acknowledgement of paternity under Muslim law is the nearest approach to adoption, but the two processes of derivation are quite different, and their comparison will give a clearer understanding of the concepts.
| Basis | Adoption | Acknowledgement |
| Known to be | It is the process in which the child being adopted is known to be the child of another person. | The acknowledgement proceeds on the basis of paternity. It is essential for acknowledgement that the child should not be proven to be the child of another person. |
| How it is established | It is established by a legal adoption from the natural parents to the adoptive parent. | To establish acknowledgement, there shall not be any known father of the child being acknowledged. |
| Renouncement | Renouncing the natural family is the essential ingredient of a valid adoption. | No such renouncement is required in acknowledgement. |
| Connection | It has no connection between the natural descent of the child being adopted and the adoptive father. | It relates to the theory of actual descent of the child being acknowledged by legitimate means. |
| The motive behind the act | The motive behind adoption can be religious or spiritual. | There is no such motive. |
In the case of Muhammad Allahdad Khan vs. Muhammad Ismail (1888), the petitioner filed a suit after the death of his father. The petitioner stated that he was the eldest son of the deceased and claimed 2/7th portion of the estate of the deceased. He asserted that he was the stepson of the deceased, as he was born before the marriage of the mother and father. He further contended that the deceased has acknowledged him on several occasions. As proof, he even showed many letters sent by the deceased to him that showcased the deceased had acknowledged the petitioner as his son. The court held that the petitioner had showcased that he was the son of the deceased and, hence, he was entitled to his property.
Section 116 of Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 112 of the Indian Evidence Act, 1872)
According to Section 116 of Bharatiya Sakshya Adhiniyam, 2023, if a child is born within 280 days of dissolution of marriage, then the child will be considered to be legitimate, provided that the mother remains unmarried during that period.
The following gives a better understanding of the stance of both the Indian Evidence Act, 1872, and Muslim laws:
- A child born after 6 months from the date of marriage union but within 280 days of the termination of the marriage is legitimate under both systems, subject to proof of non-access under the Indian Evidence Act.
- Under the Indian Evidence Act, a child will be deemed to be legitimate even if it is born on the next day of the marriage. But if it is shown that the parents have no access to each other, such presumptions will not be made.
There are such contradictions between the Muslim law on legitimacy and the Indian Evidence Act, but in these situations, it is important to understand which law shall prevail. The jurists are divided on this point. Jurists like D.F. Mulla and Tyabji are of the view that the Evidence Act shall prevail upon the Muslim law, but according to Ameer Ali, the Evidence Act embodies the English rule of law, and as a result, it cannot be applied to Muslim law.
The Allahabad High Court held in the case of (Syed) Sibt Mohammad vs. Mohammad Habeet and Ors. (1926) that Section 112 of the Indian Evidence Act supersedes the Muslim law.
Illegitimacy
When the legitimacy of the child born cannot be proved, the child is considered to be illegitimate. There are many hardships that are faced by the illegitimate child, as he/she will not get the inheritance rights, which can impact their life. Another difficulty is faced by the mother of the child, as she has to face a harsh punishment for adultery (Zinha). It can further be broken down into Sunni and Shia laws. Under Sunni laws, the illegitimate child can inherit from his/her mother; on the other hand, under Shia laws, illegitimacy acts as a factor to complete exclusion; in no circumstance, the illegitimate child under Shia laws can get the right to inheritance.
Another important consideration for an illegitimate child is his/her right to maintenance. Muslim laws broadly do not confer any mandatory obligation on either of the parents of the illegitimate child, but Sunni laws do consider an obligation to maintain the child until he/she turns 7, but Shia laws do not have such obligations. Under such circumstances, Section 125 of the Criminal Procedure Code, 1973 (now Section 144 of BNSS), comes into play, which states that the father of an illegitimate child is obligated to maintain him/her.
Impact of the Uniform Civil Code on Muslim laws pertaining to legitimacy and parentage
The Uniform Civil Code (hereinafter referred to as the UCC) will have a major impact on Muslim laws. As per Muslim law, a child is considered legitimate only if he/she is born out of a valid marriage. If UCC is implemented, it can broaden the definition of legitimacy and might include recognizing children born out of wedlock or through assisted reproductive technologies. This will also have a major impact on the right of inheritance and other legal rights. Further, the UCC will also have an impact on the definition of paternity, which will impact child custody, maintenance, and other related matters. The implementation of UCC will lead to a more equitable and uniform legal framework for all citizens, regardless of the religion they practise. Implementation of UCC requires a deep analysis of various legal, social, and religious perspectives.
Conclusion
The concept of legitimacy and parentage is made of different doctrines and principles that have been interpreted in a way to reach a lawful solution over the years. Sometimes these concepts become more complex and difficult to interpret because these concepts are different in different schools of Muslim laws, like the Shia laws and Sunni laws. Some of the major differences can be seen in the article above.
Legitimacy is the idea that brings a lot of rights and duties attached to it for both the child and the parents. For example, the child has the right to inheritance if he/she is proven to be legitimate, while on the other hand, it is the duty of the parents to maintain their child until they grow to a certain age.
If the legitimacy of the child is in question, acknowledgement by the father plays a crucial role in establishing legitimacy; the acknowledgement can be expressed or implied; this concept highlights the patriarchal nature of the laws. The process of acknowledgement is different from that of adoption, but both concepts eventually result in the involvement of the child in the family and legal structure, which may be through the rights given to the child.
Under these concepts, the Indian Evidence Act also plays a crucial role, as it has been stated time and again by different courts that Section 112 of the Indian Evidence Act shall prevail over Muslim laws when the question of law pertains to legitimacy.
Lastly, it can be said that the intersection between the Muslim laws and the Indian legal system demands a good understanding to figure out the rights and duties of individuals under this framework. As society is evolving, so must the laws, and this can be done by interpreting the laws according to the needs of the society while maintaining fairness and equity for all.
Frequently Asked Questions (FAQ’s)
What is the difference between parentage and legitimacy?
Parentage involves both maternity, paternity, and acknowledgement by the parents. A child born out of a valid marriage is legitimate. These two concepts are interlinked, but their meanings are different.
How can a child’s legitimacy be determined under Muslim laws?
One of the primary factors in determining a child’s legitimacy under Muslim law is to see if the parents of the child were married at the time of his birth. Another circumstance where the child’s legitimacy can be determined is when the father and mother of the child have lived together for a while and the society has had an impression of them being married.
Can an illegitimate child be legitimised?
Yes, the status of an illegitimate child can be changed to legitimised if any Muslim man acknowledges that child as his own; this process in Muslim law is known as Iqrar-e-nasab. The acknowledgement can be either implied or expressed.
How is paternity established under Muslim law?
Paternity under Muslim law is established through a valid marriage between the parents of the child at the time of his birth. However, under Sunni law, acknowledgement by the father also leads to the establishment of paternity.
What is the meaning of Shubha?
Shubha under Muslim laws means indirect marriage, which can be established through different means, like cohabitation between a man and a woman if the father owns up the wife, if the father claims the child.
What happens under Muslim laws when the child is born and the parents are not married?
The child born outside of the wedlock is considered to be illegitimate, but there is a concept of acknowledgement in which the father of the child can acknowledge the child as his own, which will lead to the child being legitimate and getting the attached rights to legitimacy.
Is there any difference in approach when it comes to legitimacy in Shia and Sunni laws?
Yes, there is a difference in the approach, as Sunni laws are more flexible and Shia laws are stricter when it comes to the concept of legitimacy. Sunni laws rely on scholarly consensus and analogical reasoning, while on the other hand, Shia laws rely more on the authority that is their religious leaders.
Is adoption recognised under Muslim law?
Adoption is not recognised under Islam, as held in the case of Muhammad Allahdad Khan vs. Muhammad Ismail (1888). In this case, the Privy Council held that “there is nothing in Muslim laws similar to adoption.” However, acknowledgement is the one concept through which a Muslim man can claim a child as his own.
References
- Mulla- Principles of Mahomedan Law
- https://blog.ipleaders.in/preliminary-sources-muslim-law/
- https://blog.ipleaders.in/illegitimate-children-muslim-law/#_ftn5
