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Illegitimate children under Muslim Law

August 24, 2024

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This article was written by Saanvi Singla and has been updated by Kruti Brahmbhatt. It exhaustively discusses the concept of illegitimate children under Muslim law. It provides an in-depth explanation of the meaning, acknowledgement, parentage, and rights of illegitimate children under Muslim law. Further, it also covers various case laws and opinions of scholars on different aspects affecting illegitimate children, such as right to pray, marriage, maintenance, etc.

Table of Contents

Introduction

In India, there is a negative mindset regarding an illegitimate child. These children are subject to a great extent of economic and social issues, such as social stigma, lack of financial support, non-acceptance by parents/families, etc. Apart from the social factors, there also exist several legal aspects which come into play due to illegitimacy. It impacts the rights and entitlements, which the child could receive in the future. Some religions completely restrict the rights of such a child, while others provide limited rights, such as financial support. However, under different personal laws, there are certain rights given to such a child. Each follows its own customs and theories in order to acknowledge such children. When it comes to Muslim law, which is uncodified, most of the provisions are derived from customs and prevalent usages. Further, Muslim law includes various schools of thought, such as shias, sunnis, etc. The status and the rights of an illegitimate child also vary, depending on the school of thought.

Meaning of illegitimate child

The word “legitimacy” is derived from the Latin word “legitimus”, which means lawful. This means that the term “legitimate child” refers to a situation wherein the parents of the child are lawfully married to each other. Contrary to this, an illegitimate child is one whose parents were not married to each other at the time of his/her birth.

An illegitimate child is identified on the basis of the marital status of its mother. In cases where a child is born outside of a marriage, and the mother then marries later on, that child is said to be legitimised by marriage. However, it varies under each personal law.

Illegitimate child under Muslim Law

Under Muslim law, a child born out of zina (premarital or extramarital relationship), cannot be legitimised. Historically, such a child is also termed as a “bastard”, which is a derogatory term that signifies shame, stigma and inferiority. In Muslim law, a child is legitimate only if he/she is begotten by a man and his wife or a man and his respective slave. Any other offspring is known as zina, and hence is not legitimate. The term “wife” essentially implies marriage, but marriage may also be entered into without any ceremony. Therefore, the presence of marriage in any particular case, may be an open question.

The legitimacy of children shall be based on the relationship between the child’s parents. A child shall be entitled to receive rights if found to be legitimate. Illegitimacy is determined on the basis of certain conditions, which are as follows:

The first condition for the establishment of illegitimacy is zina. Under Islam, zina refers to illicit sexual relations, either between two unmarried parties or, adultery with both parties being married, provided there are four witnesses to the act. In such a case, the parties shall be subject to the hadd punishment (severe punishment prescribed in the Quran). Wherein an unmarried woman becomes pregnant without any witnesses, then in such a case, only the woman shall be punished. Children resulting from such sexual relationships shall be considered illegitimate.
The second condition is when within a legitimate union, due to certain situations, the child can be considered as illegitimate. Four such situations that confirm a child as illegitimate are:

Imprecation: Also termed as li’an, impercation is defined as an oath that leads to divorce. The husband may deny paternity of a child to his wife, accusing her of adultery, without any proof (four witnesses). In the process of li’an, the husband undertakes that the wife has committed adultery, against which, she may take an oath denying the same. In such a situation, the husband might accuse his wife of adultery even if she is not pregnant, or might disown the conception of the child. Despite the legal relationship between the husband and wife, since the husband disowns the child, such a child shall be considered illegitimate.
Gestation period: The time during which a woman is pregnant is known as the gestation period. A child is considered legitimate, when it is born at least six months after marriage. The Shafi, Maliki and Hanbali schools of thought, consider a child born at least six months after the marriage, as a legitimate child, provided the couple has been residing together since the marriage.

In cases where a woman has observed the period of iddah after divorce, a child is considered legitimate if the period between the divorce and conception is more than two years for Shafis, more than four years for Hanbalis and more than five years for Malikis.

Hence, if the child is born prior to the completion of the prescribed period, he/she would be declared illegitimate, resulting from adultery.

Inability to beget: When a husband is unable to become a father due to physical conditions (such as eunuch), it is known as inability to beget. The Shafis hold that a child born to such a man’s wife, shall be considered as illegitimate. The Malikis believe that medical opinion is required in such cases. If the medical experts are of the opinion that the husband is not capable of impregnating a woman, the child should be considered as illegitimate.
Refusal of paternity: As per the Hanafis, when a child is born to a female slave, and the master denies paternity, such a child shall be considered as illegitimate. However, since the woman was a slave, the child born shall also be a slave to the master.

The third condition is where the child is born out of a marriage which is unlawful. This includes marriages between close relatives, marriages with a person who worships idols, marriages with a person who already has multiple husbands and marriage with a husband who already has four wives. Any child born out of these prohibited marriages, is considered to be illegitimate.

Parentage and belonging of an illegitimate child

Parentage is exclusively established with the real father and mother of a child, and only if they beget the child in lawful matrimony. Muslim jurists link a child born from adultery and li’an, to the mother’s family. Although the man accepts the adultery and the fact that he is the father of the child, legally, the child shall be associated with the mother. In case the man accepts the child, but the mother is a slave, along with being illegitimate, the child shall also be considered as a slave.

In Hanafi law, parentage is established in every case, by the mother, but in Shiite law, parentage is established only if the child is begotten in lawful wedlock, which means that an illegitimate child will not belong to either of the parents. However, they are also of the view that an illegitimate child, for some purposes, such as for feeding and nourishment, belongs to the mother.

When a man ignores any other affecting factors and accepts the child without disclosing adultery, such a child is considered to belong to him and is freed from slavery. On the other hand, if a man terms the marriage to be invalid, he would not be considered the father of the child. The reason behind this concept of following the mother’s lineage, is that usually, the father would refrain from confessing adultery, in the fear of the hadd penalty. The mother may confess that a certain man is the father of the illegitimate child, but it does not hold good unless there exist four witnesses to the act.

The Privy Council in Sadik Hussain Khan vs. Hashim Ali Khan and Ors. (1916), stated that if a person acknowledges someone as his/her legitimate child, then even if that child was initially considered illegitimate, this statement of acknowledgement serves as evidence of legitimacy in absence of other evidence. However, it is pertinent that in such a situation, the child’s legitimacy must be possible.

Again in Habibar Rehman Chowdhury vs. Altaf Ali Chowdhury (1918), the court held that there is no process recognized under Muslim law, by which a status of legitimacy may be conferred on an illegitimate child.

Acknowledgement as a legitimate child

Under Muslim law, a child who has been declared as illegitimate, cannot be later conferred with the status of legitimate. However, a child can be acknowledged as legitimate, under certain situations, which are the following:

The paternity of the child is not established beyond doubt
It is not proven that the child is born out of zina
The marriage between the acknowledger and the mother is not impossible.

These conditions are laid under the doctrine of acknowledgement. This is not revocable and it provides the right of inheritance to the child. In the case of Muhamman Allahdad Khan vs. Muhammad Ismail Khan (1886), the court held that when no direct evidence of marriage can be presented, no legitimacy can be established. Hence, in order to prove paternity beyond doubt, the marriage has to be proven as valid.

Rights of an illegitimate child under Muslim Law

Inheritance of an illegitimate child

Under classical Muslim law, as well as in some of the modern Islamic jurisdictions, an illegitimate child has no right to inherit property from the father. The mother of an illegitimate child may find herself subject to harsh punishments as a result of zina. Thus, the status of legitimacy in Islamic law, has a huge impact on the lives of children and their parents, especially mothers. One such aspect is that it becomes difficult for an illegitimate child to claim property from his/her parents.

No school of thought under Muslim law holds that an illegitimate child has any right of inheritance in the ownership of his/her putative father. Under Hanafi law, the mother and her illegitimate children have mutual rights to inherit property. The illegitimate child inherits not only the property of his/her mother, but also the property of all other relations established through the mother.

Thus, for instance, when a Hanafi female dies, leaving behind her husband and an illegitimate son of her sister, the husband is entitled to one-half of the total property and the remaining would go to the sister’s son.

A reciprocal right of inheritance exists between an illegitimate child and his/her maternal relations. These relations are residuary heirs. The other inheritors include his/her spouse and descendants, with the exception of the father and his relations. Thus, if an illegitimate person leaves behind a mother, a daughter, and a father, then the daughter would receive one-half and the mother would receive one-sixth of the inheritance. The remainder would revert to the concerned person. The father would be excluded. Similarly, an illegitimate brother and an illegitimate uncle are not entitled to inherit. However, a twin brother would inherit as his uterine brother (The twin brother is regarded as the son of only the mother and not that of the father. Hence, the term “uterine brother”).

Under Shia law, an illegitimate child does not inherit from the mother. Here, illegitimacy acts as a factor for complete exclusion, and such a child is not allowed to inherit from either of the parents.

Maintenance of an illegitimate child

Tyabgi says “Mohammadan law appears to impose no burden upon the natural father of the child”. Muslim law, it seems, does not confer any kind of obligation of maintenance of illegitimate children, on either parent, though the Hanafis recognize the obligation of nurturing a child till the age of seven. The Shias do not even recognize this obligation.

Under Muslim law, the father is not bound to maintain his illegitimate child. However, it is to be noted that Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (earlier, Section 125 of the Criminal Procedure Code, 1973) requires the father to pay for the maintenance of the child, whether legitimate or illegitimate. The father would be held liable to pay a certain amount even if the mother refuses to give up the illegitimate child to him.

In the case of an illegitimate child, since the mother is responsible for the child’s parentage and upbringing, her family is also obliged to maintain and care for the child. A divorced woman (divorce due to li’an) cannot claim maintenance from her former husband, even if the woman is pregnant.

Here, there are differences in opinion amongst the different schools. The Malikis believe that when a woman is divorced because of adultery, she does not hold the right to claim maintenance. However, if the woman is at least six months pregnant at the time of divorce, the child shall receive maintenance, because there is a high probability that the child belongs to the concerned man. In such a case, if the husband later accepts the paternity of the child, then he shall be subjected to the hadd punishment. The Shafis believe that the mother is required to maintain and provide support to the child, while the father may disown the child. Interestingly, even if the father who initially disowned the child, accepts him/her later on, it is still the mother who shall be responsible for the child and not the father. The first stance of the father, that the child is not his, is what would be taken into consideration. If the mother requires money for the maintenance of her child, she may borrow it from her former husband, but this shall be considered as a debt. Here, there exists no legal relationship between the child and the father. When the child is disowned by the father, he/she is not liable to provide maintenance to the father. In cases where the mother’s family refuses to provide, it shall be the duty of the State to take up the responsibility of the child.

Muslim law is largely silent regarding a child born from rape, but it is generally accepted that he/she shall be considered as an illegitimate child. The punishment for a rapist is clearly prescribed under Muslim law, but provisions regarding the child’s maintenance and care are not clearly laid out. If the man is proven guilty of committing rape, then he shall be liable to pay a dower to the woman for maintaining the child.

Custody and guardianship of illegitimate children under Muslim law

Custody and guardianship under Muslim law are termed as “hizanat” and “wilayat” respectively. Custody means having physical possession of and taking complete care of a minor child. Under Muslim law, it is generally the mother who is entitled to the custody of a minor child, because of the fact that she is the best person to take care of the child. On the other hand, guardianship has four dimensions to it- wila-e-muhabbat (the right of love and devotion), wila-e-imamat (authority in spiritual guidance), wila-e-ziamat (authority in socio and political guidance) and wila-e-tasarruf (authority of the universal nature). It is divided into these to ensure that the child receives overall physical, spiritual and mental development.

The schools of both the Sunnis and the Shias, recognized the father as the guardian, and the mother, under all Muslim schools of law, is not recognized as a guardian, natural or otherwise, even after the demise of the father. The father’s right of guardianship exists even when the mother, or any other female, is entitled to the custody of the minor. The father holds the absolute right to control the education and religion of minor children. So long as the father is alive, he is the exclusive and supreme guardian of his minor children.

In Muslim Law, an illegitimate child is considered as a child of nobody. Therefore, the father’s right of guardianship extends only to his minor legitimate children. He is not entitled to the guardianship or the custody of his illegitimate minor children. The mother is also not a natural guardian of her illegitimate minor children, but she is entitled to their custody.

Bloodwit (diyah) for an illegitimate child

Under Muslim law, diyah is the compensation paid to a victim or his family, against any harm or injury caused to him or her. Herein, if an illegitimate child commits any offence or crime that involves payment of compensation, then in such a situation, the mother or her family, whoever is responsible for the child, must pay the diyah.

Slavery and manumission (release from slavery) of an illegitimate child

A child born from a female slave, is considered illegitimate. Interestingly, the owner of a slave woman can free such illegitimate children. Muslim scholars such as Abd Allah, Hasan al-Basri, Ibn Juray etc, were of the opinion that illegitimate children and their mother must be free from slavery. According to them, this act might bring them closer to Allah. Hanafis believed that an innocent child must not be treated as a slave merely because of the parents’ actions.

However, scholars such as Abu Hurayrah, Mujahid and a few others, did not allow buying, selling or freeing of illegitimate children from slavery. They considered entering into a holy war, a better option than freeing illegitimate slaves.

Marriage of an illegitimate child

Under the classical view, there is a difference of opinions with respect to the question of whether a father can marry his illegitimate daughter. The Shafi’is and a few scholars of Malikis, believe that a father may marry his illegitimate daughter, because there is no legal relationship between them, as per Islam. Since there is no legal relationship, the prohibitions laid down in the Quran are not applicable here.

The Hanafis and Hanbalis state that a man might not legally be the father of the daughter, but she is still the biological daughter. They strictly prohibit a man from marrying his illegitimate daughter. Further, the Hanbalis also hold that a man who marries his illegitimate daughter, must be severely punished. Later on, the Malikis also declared the marriage between a father and an illegitimate daughter to be unlawful. They strictly prohibited the man from marrying a child of zina.

Prayer by an illegitimate child

In the early days, the classical view agreed with the opinion that an illegitimate child could offer prayers if the child is a good person by character. Later on, the Maliks, Shafis and Hanafis, declared the offering of prayer by illegitimate children, as inappropriate. According to them, if an illegitimate child offers prayers, it would be a topic of gossip and disrespect. Additionally, they believed that illegitimate children generally lack religious knowledge.

The Hanbalis held a different opinion here. They believed that an illegitimate child could lead prayers if he/she is aware of the religious practices. They opined that a person’s ability to offer prayers must not be subject to the person’s birth circumstances. They reflected on the concept that individuals are not responsible for the actions of their parents.

Relevant case laws

Gohar Begam vs. Suggi Alias Nazma Begam (1959)

In this case, the petitioner, Gohar Begam, was an unmarried Sunni Muslim woman. She had filed a habeas corpus petition under Section 491 of the Code of Criminal Procedure, 1898, for the custody of her illegitimate child (female). She claimed that the child was born out of wedlock and under the Mohammedan law, the mother holds custody of the illegitimate child. Herein, the respondents took the child and refused to return her. They argued that the petitioner had an alternative remedy under the Guardian and Wards Act, 1890 and hence, the petition would not be maintainable under Section 491.

The Supreme Court held that the petition was maintainable under Section 491 of the CrPC, 1898 since the remedy under the Guardian and Wards Act, does not impose a bar on the application under the said provision. Section 491 is applicable in this case, because the child was illegally detained. Further, the Supreme Court analysed the principles of Mohammedan law, which provides the custody of an illegitimate female child to the mother. Therefore, the Supreme Court ordered to grant custody of the child to the mother.

Sukha vs. Ninni (1965)

In this case, an application was filed by Ninni, under Section 488 of the Code of Criminal Procedure, 1898 for custody of Jamila, her illegitimate child with Sukha. The Sub-divisional Magistrate ordered Sukha to pay maintenance for the child. The decided pay was Rs. 10 per month, which was later reduced to Rs. 6 per month, by entering into an agreement with Ninni. However, Sukha dishonoured the agreement, against which Ninni filed a suit for the recovery of maintenance. Sukha claimed that under Muslim law, the father has no liability to maintain an illegitimate child. He also stated that the agreement was void and hence, cannot be enforced.

The Rajasthan High Court in this case, observed that Muslim law does not impose any obligation on the father to maintain an illegitimate child. However, the agreement between Sukha and Ninni was valid and enforceable. The court also observed that the parties had entered into an agreement to maintain the child’s welfare.

Syed Habibur Rehman Chowdhury vs. Syed Altaf Ali Chowdhury (1921)

In this case, the plaintiff claimed to be the legitimate son of Nawab Syed Abdus Sobhan Chowdhury of Bogra, who died intestate in 1915. The plaintiff, Habibur Rahman Chowdhury, claimed that Nawab Sobhan had accepted him as a child. He also presented a declaration of legitimacy, which said that his mother was married to the Nawab. The defendants in this case were the Nawab’s grandson and two nephews. Here, the question was regarding the validity of the marriage between his mother and the Nawab. The plaintiff however, failed to prove the validity of the marriage. Further, with regards to the acknowledgement of a legitimate son, the court stated that mere acknowledgement of a child does not prove him to be legitimate. What is important is that the parents of the child are lawfully married.

The Bombay High Court further explained the difference between legitimacy and legitimation. It said that results from certain facts, such as a valid marriage, legitimation, etc. provide a status (legitimacy) that did not exist before. However, under Muslim law, there is no concept of acknowledgement of a child without legitimation. The court dismissed the suit, stating that there was no valid marriage between the child’s parents. It was held that without the validity of marriage, the acknowledgement by the Nawab, did not confer legitimacy on Habibar Rahman.

Mohammed Allahdad Khan and Anr. vs. Mohammad Ismail Khan and Ors.(1886)

In this case, Mohammed Allahdad Khan claimed to be a legitimate child of Ghulam Ghaus Khan. However, the defendant rejected the said claim. Herein, the acceptance of the claim shall allow Mohammed Khan to inherit the property of the father. The question raised was whether the acknowledgement of Mohammad Khan as a son was enough to establish legitimacy. The court examined that under Muslim law, acknowledgement by a man that someone is his child, might establish legitimacy, despite a lack of evidence of marriage between the parents.

The Allahabad High Court held that Ghulam Ghaus Khan’s acknowledgement of Allahdad Khan as his child was valid and could establish his legitimacy. Hence, the plaintiff shall be entitled to inherit property.

Comparative analysis of rights of illegitimate children

Section 116 of the Bharatiya Sakshya Adhiniyam, 2023, provides for the legitimacy of a child, which states that any person who is born during the continuance of a valid marriage between his mother and any man, or within 280 days of the dissolution of marriage, the mother being unmarried, shall be a conclusive proof that he is the son of that man. However, the child would not be considered legitimate if the parties to the marriage had no access to each other at any time when he could have been begotten.

There are only a few minor differences between the provision given under Bharatiya Sakshya Adhiniyam, 2023, (hereinafter referred to as BSA) and the Muslim law. Under Muslim law, a child should be born after six months of the marriage, however, under BSA, a child born soon after the solemnisation of marriage would be a legitimate child. In the case where the child is born after the dissolution of marriage, under BSA, the child must be born within 280 days and the mother should be unmarried whereas, under Muslim law, the period of time varies as per different schools of thought.

Other personal laws, apart from Muslim law, also recognise the rights of illegitimate children. These include Hindu law, Christian law, etc. The rights of illegitimate children are widely recognised under Hindu law. Section 16(3) of the Hindu Marriage Act, 1955, prescribes the rights of illegitimate children. They have a right to inherit property from their parents, but they cannot inherit property from other relatives. Hence, an illegitimate child cannot inherit ancestral property. Further, under the Hindu Adoption and Maintenance Act, 1956, unlike Muslim law, illegitimate children are given a right to maintenance from their parents. It aligns with the idea that despite the child being legitimate or illegitimate, it is the duty of a Hindu to maintain and take care of the child. Finally, Section 6 of the Hindu Minority and Guardianship Act, 1956, provides that the mother of an illegitimate child, shall be considered as the natural guardian of the child. In case of absence of the mother, the father shall be considered as the natural guardian.

Under Christian law, the Indian Succession Act, 1925 does not accept illegitimate children for inheritance of property. No obligation is placed on the parents to maintain their illegitimate child under Christian law. Only legitimate children are entitled to receive maintenance and support from their parents.

Conclusion

In today’s era, when the world strives towards freedom, equality and equity, having restrictions on the rights of a person, due to the parent’s actions, requires reforms and review. Under Muslim law, the treatment and rights of illegitimate children, is a complex issue, each having different opinions and mindsets. It might be difficult for an individual to accept and face the social stigma, financial insecurities etc, associated with being an illegitimate child. There is a lack of legal protection for such children.

It is left to the imagination what the plight of illegitimate daughters has been over the years, as they also suffer because of being of an exploited gender. These traditional, classical and modern views must be wisely interpreted, to protect the human rights and dignity of every person. Efforts must be made to align these laws with the current societal and human rights norms.

Frequently Asked Questions (FAQs)

What is the meaning of walad zina?

Walad zina is a term used in Islamic laws, to describe a person born out of wedlock or relationships which are unlawful. The literal meaning of walad zina is, child of adultery or illegitimate child.

Can an illegitimate child testify?

There have been various opinions with respect to an illegitimate child’s right to testify. Various scholars, such as Abd al-Aziz and Malik, initially rejected the testimony given by illegitimate children. Many scholars believed that when the nature of the offence is zina, the testimony must be rejected, while some believed that the circumstances of a person’s birth had nothing to do with the testimony. Later on, such testimonies started gaining acceptance.

What are the maintenance provisions for illegitimate children, under Indian criminal laws?

Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 states that maintenance must be provided to legitimate or illegitimate minor children, or even a major child in case he/she is unable to maintain themselves due to some physical challenges. This provision ensures the right of illegitimate children to receive maintenance from their parents. (Earlier, this provision was found under Section 125 of the Criminal Procedure Code, 1973.)