In this blog post, Saanvi Singla, a student of University Institute of Legal Studies, Panjab University discusses the rights of illegitimate children under Muslim Law. This article highlights the plight of illegitimate children who fall under Muslim Law in today’s world. 

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Introduction

Who is an illegitimate child? An illegitimate child is a child whose parents were not married to each other at the time of his/her birth[1]. Illegitimate child is synonymous with bastard, as in a bastard child[2].

The plight of illegitimate children has always been pitiful. They get punishment for no fault of their own. The main question that arises here is – What is the fault of the child? In Hindu law, the illegitimate child belongs to the mother. But under Muslim law, the child does not even belong to the mother and is considered as the child of nobody.

 

Muslim Law

Parentage is exclusively established with the real father and mother of a child, and only if they beget the child in a lawful matrimony. Muslim Law is devoted to the notion that an illegitimate child is a child of nobody. In Hanafi law, parentage is established in the 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. They (Sunnis or the Hanafis) adopt a view that an illegitimate child, for some purposes, such as for feeding and nourishment, belongs to the mother. For these purposes, the Hanafi Law confers some rights on the mother.

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In Muslim law, a son is legitimate only if the offspring is begot by a man and his wife or a man and his respective slave; any other offspring is known as ‘Zina,’ which means a clandestine connection, and hence is not legitimate. The term ‘wife’ essentially means marriage but marriage may be entered into without any ceremony; the presence of marriage therefore in any particular case may be an open question. Direct proof is needed to prove a marriage valid, but if there be no such proof, indirect proof shall suffice. Now, one of the ways for indirect proof is by the acknowledgment of legitimacy in favor of a son. This acknowledgment must not be merely of sonship, but must be made in such a manner that it shows that the acknowledger’s intention is to accept the child as his legitimate son.

Privy Council in Sadiq Hussain v. Hashim Ali[3]said that ‘No statement made by one man that another (proved to be illegitimate) as his son can make the other legitimate, but where no proof of that kind has been given, such a statement or acknowledgement is substantive evidence that the person so acknowledged is the legitimate son of the person who makes the statement, provided his legitimacy is possible.’

Again in Habibur Rehman Chowdhury v. Altaf Ali Chowdhury[4], ‘the Court has said that there is no process recognized under Muslim law by which a status of legitimacy may be conferred on an illegitimate child. But, it seems that one of the reasons for permitting polygamy and temporary forms of marriages under Muslim law is that under no circumstances the child born to them shall be illegitimate.’

Right to property of illegitimate child

In Muslim law, the illegitimate child has no right to inherit property from the father in the classical law, as well as in some of the modern Islamic jurisdictions.The mother of an illegitimate child may find herself subject to harsh punishments for having Zina. Thus, the crucial status of legitimacy in Islamic law has a huge impact on the lives of children and their parents, especially mothers. Thus, it is difficult for an illegitimate child to claim property from his or her parent/s.

In no school of Muslim law, an illegitimate child has any right of inheritance in the ownership of his putative father. Under the 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 with whom he/she is related through their mother.
Thus, when a Hanafi female dies to leave behind her husband and an illegitimate son of her sister, the husband will take one-half of the total property and the remaining will go to the sister’s son. Since the illegitimate child cannot inherit from the father, he/she cannot inherit from any other relations through the putative father.

A reciprocal right of inheritance exists between an illegitimate child and the maternal relations. They are also his residuary heirs. Of course, his other inheritors are his/her spouses and his descendants, with an exception of his father and his relations. Thus if an illegitimate person leaves a mother, a daughter, and father, the daughter would get ½ and the mother 1/6th; the remainder would revert to them. The father would be excluded. Similarly, an illegitimate brother and illegitimate uncle are not entitled to inherit. But a twin brother will 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)[5].

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

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Right to maintenance of illegitimate child

Tyabgi says ‘Mohammadan law appears to impose no burden upon the natural father of the child’[6]. Muslim laws, it seems, does not confer any kind obligation of maintenance of illegitimate children on either parent, though the Hanafis recognize the obligation of nurture 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, but Section 125 of the Criminal Procedure Code, 1973, (which ensures that all such unfortunate children are maintained by their fathers except a married daughter) however binds the father to pay for the maintenance of the child. The father would be held liable to pay a certain amount even if the mother refuses to give up the illegitimate child to him.

 

 

Guardianship under Muslim Law

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In the schools of both the Sunnis and the Shias, the father is recognized as guardian and the mother in 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 has 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. ‘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, even of her illegitimate minor children but she is entitled to their custody.

Conclusion

It is the right of every child to get love and affection from both the mother and the father. He or she has the right to be brought up in a cool, loving and accepting environment.  But justice seems to have pervaded the illegitimate children in our country under Muslim Law and for no mistake of their own. A person cannot be given punishment for a crime he/she has not even committed. The Legislature has been uninvolved in this topic, which requires immediate attention and proper legislation to remedy the anomalies in law. It will not be wrong to say that it is truly ironical that the reforms introduced by legislation have rather created aberrations and confusion rather than improving the status of illegitimate children.These inconsistencies in the law seem to have affected the Hindus, the Muslims, and the Christians most of all.

It is left to the imagination what the plight of illegitimate daughters has been over the years, as they suffer doubly because of their illegitimacy and more importantly because of they belong to the exploited sex! It is thus submitted that something immediately needs to be done to solve the problem of illegitimacy in India so that rights like the right to property and maintenance etc., can be conferred on them.

 

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Footnotes:

[1]http://legal-dictionary.thefreedictionary.com/Illegitimate+children

[2]http://www.duhaime.org/LegalDictionary/I/IllegitimateChild.aspx

[3] (1916) ILR 38 All 627

[4] (1921) 23 BOMLR 636

[5]http://www.legalservicesindia.com/articles/cmrights.htm

[6]http://www.supremecourtcases.com/index2.php?option=com_content&itemid=5&do_pdf=1&id=22276

 

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