This article is written by Shreya Patel. This article delves into the different aspects of paternity under Muslim law. The concept of paternity, the establishment of paternity, and how paternity is acknowledged under Muslim laws are discussed in depth, along with some landmark judgements and interpretations of the judiciary on paternity under Muslim law in India.
Table of Contents
Introduction
In India, the judiciary recognizes and upholds the practice of personal laws. Religious groups and communities have the right to follow the rules and regulations that are established, keeping their religious background in consideration to a certain degree. Islam is one of the widespread religions followed in India. Islamic laws, or Muslim laws, which are followed by Muslims, are one of the common personal laws.
The Muslim laws govern notions related to divorces, marriages, guardianship, inheritance, succession, adoption, and various other important concepts for the people who follow the Muslim religion. Some of the key Acts for Muslims in India are the Muslim Women (Protection of Rights on Divorce) Act, 1986; the Muslim Personal Law (Shariat) Application Act, 1937; the Muslim Women (Protection of Rights on Marriage) Act, 2019; the Dissolution of Muslim Marriages Act, 1939, etc. Under Muslim law, the notion of paternity holds great importance and acts as a key factor when it comes to establishing the legitimacy of the child.
Parentage and legitimacy
The relationship between the parents (mother and father) after the child is born is known as parentage. While the relationship between the child and the mother is referred to as maternity, similarly, paternity is the relationship between the father and the child. For a child, parentage is one of the significant rights that is directly related to many other rights of the child. When it comes to guardianship, adoption, succession, inheritance, etc., the child’s parentage is often one of the main points taken into consideration. In Muslim law, the acknowledgement of paternity is a form of legal process where, in case of any uncertainty, the father formally acknowledges the child as his. Both the concepts of parentage and legitimacy are closely related to marriage under Muslim law.
Legitimacy, in simple words, means when the child is born out of a valid marriage. When a child is born out of a wedlock, meaning the parents are legally involved in a lawful marriage, their child is considered a legitimate child. The marriage of the parents is the key point of consideration that decides the legitimacy of the child. When a child is born through adultery, i.e., Zina, the child will not be considered a legitimate offspring.
The child is presumed to be legitimate when born within less than six months after the marriage. The father has to acknowledge such a child. The legitimacy can also be presumed if the child is born within 10 months under the Shia law, within two lunar years under the Hanafi law, or born within four lunar years as per the Maliki and Shafi laws after the dissolution of marriage has taken place. If the child is born after six months from the day on which marriage took place, then the child can be presumed legitimate. The father can disclaim the same by lian.
Concept of maternity
The relationship between the mother and the child is known as maternity. The maternity of the child is established as soon as the birth takes place. The maternity is established even if the child is born out of a valid marriage or adultery (Zina) under the Sunni sect of Muslims. While for the Shia sect, mere birth of the child is not counted as sufficient for establishing the maternity.
In the case of Gohar Begum vs. Suggi Alias Nazma Begum and others (1960), the distinction between the child who is born out of a union that is unlawful and a child who is born out of a union that is lawful (valid and lawful marriage) was made by the Supreme Court of India. The Supreme Court stated that when a child is born, the woman who gives birth will be considered as the mother of the child, and maternity will be established irrespective of the relationship between the begetter of the child and her under the Hanafi law.
Concept of paternity
The relationship of the child with the father is referred to as paternity. In layman’s terms, paternity is the fact or state of being a father to a child. The connection between the child and the father is described as paternity. The concept of paternity is crucial in many legal aspects. When paternity is established, the father becomes the legal father of the child. As the father of the child, paternity acts as a legal status. The establishment of paternity is very significant.
Paternity is often very vital in religious, social, and legal considerations in India. The concept of paternity plays an important role in the legitimacy of children under Muslim law in India. Paternity also plays a key role when it comes to inheritance under Muslim laws. The inheritance of the property is often directly related to the legitimate child. A father in Muslim law is also required to pay maintenance to his legitimate children in some cases. Paternity plays a key role in establishing the legitimate status of the child under Muslim personal laws.
The Islamic law recognises paternity only through marriage. For the child to be considered legitimate, a marriage has to take place between the mother and father of the child, who then acknowledges the paternity. Paternity holds multifaceted importance under Muslim laws.
How is paternity established
A marriage between the parents of the child is the only way through which the paternity of the child can be established in Muslim law. The marriage between the parents can be an irregular marriage or a valid marriage. But void marriages will not be considered at the time of establishing paternity.
In order to establish the paternity of the child, legal proof, evidence, or legal presumption can be used that the child that was conceived by the woman was his legal wife at the time of conception, and they were both in a legally recognized marriage. The husband believed in good faith at that time that the marriage was valid. In simple words, if a child is born and the man thinks that the child he has is with his wife or believes that the woman is his wife, then the law will recognize the man as the child’s father.
Under Shia law, if the marriage is a void marriage, then the child born out of this void marriage will not be legally recognized. It will be considered that the child has no legal mother or father. The child will not have any legal rights in the parent’s inheritance as well. When a child is born out of a void marriage, the law will not recognise the acknowledgement of maternity and paternity.
The relationship between the paternal figure and the child is known as paternity, i.e., he is the father of the child. Paternity is not a matter of fact as per Muslim laws. Paternity is established only in one way, which is marriage. Under Muslim personal laws, maternity can be established as a matter of fact, but for paternity, it can only be through the means of a valid marriage. The child will be considered illegitimate if the marriage between his mother and father has not taken place according to Muslim laws. As per the Sunni law, the child will not have paternity if a marriage has not taken place between the parents.
Acknowledgement of paternity
The formal acknowledgement of paternity under Muslim laws is known as Ikrar-e-nasab. A legal relationship between the father and son is served through Iqrar-e-nasab. Only when all the conditions of the valid acknowledgement are fulfilled, the relationship between the child and father is established. The declaration made by the father that his child is legitimate is the acknowledgement of paternity. In the case of Fazilatunnesa vs. Kamarunnisa (AIR 1904 9 cal. W N 352), it was held by the court that acknowledgement of paternity is one of the most integral and crucial parts of the Muslim laws in India. The acknowledgement made in either an express or implied way will be considered. When an acknowledgment of paternity is present, full recognition is given to the same.
The acknowledgement of paternity is only considered when the child is legitimate. Any child born out of a valid nikah/marriage is considered a legitimate child. The child will also be considered a legitimate child if he/she is born within a minimum of 6 lunar months after a valid marriage or an irregular marriage. The acknowledgement of paternity is not required if the child’s legitimacy is acknowledged by marriage between the parents. Such a child will be automatically considered legitimate. The second case is an acknowledgement of paternity, where the father acknowledges the child, so acknowledgement in any one way is required.
Necessity of acknowledgement
The main motive behind the acknowledgement of paternity is to establish inheritance rights and the father-child relationship, along with acknowledging the child’s paternity. Iqrar-e-nasab also aids in ascertaining the legal status and legitimacy of the child. Without the acknowledgment of paternity, the child cannot confer the rights that they are liable for. The acknowledgement of paternity aids in establishing the legitimacy, securing the rights in the inheritance of the father, or social recognition in the society.
Nature of acknowledgement
The acknowledgement of paternity by the father is not revocable. Once paternity is acknowledged, it is irrevocable and becomes ultimate. The acknowledgement of being irrevocable in nature proves and gives the relationship between the child and father a solid base. The legal commitment of the relationship between child and father becomes permanent in nature with acknowledgement. As the acknowledgement of paternity is irrevocable in nature, it depicts the importance of such acknowledgement under Muslim law. The irrevocable nature of acknowledgement shows how significant the whole process is and how it will establish many important rights and duties between father and child.
Conditions of valid acknowledgement
Below are some of the conditions that must be satisfied for a valid acknowledgement of paternity:
Capability of acknowledgement
When an acknowledgment of paternity is made, the person (father) making the acknowledgment must be capable of entering into such a declaration.
Acknowledgement by a natural parent
The acknowledgement of paternity is only to be done by the natural parent of the child. The father is typically the natural parent who acknowledges paternity. A biological father is the only parent who can make such an acknowledgement. When the acknowledgement is made, the biological/natural parent authenticity of the acknowledgement can be ensured.
Competent party
The parent who is making the acknowledgement (biological/real father) must be a competent party to make such an acknowledgement. The father should be a person with a sound mind. The father must be an adult who is able to consent to such acknowledgement. The father must have the capacity to make informed and educated decisions.
Age of parties
The age gap between the father and son who are being acknowledged must be that of a father or son. The age of the acknowledger and the son must not be impossible by nature. As per Baillie, the age difference should be a minimum of twelve and a half years between the father, who is acknowledged, and the son, who is acknowledged.
Marriage between parents
There should be a valid and legally recognized marriage between the mother and the father. Marriage between the parents is the core component when it comes to a valid acknowledgement of paternity. No reason should be present; that raises the question of the legality of the marriage between the parents.
Acknowledgement in implied or express form
The acknowledgment has to be expressed or implied. The father can use either implied or express ways to acknowledge the child. The father can implicitly acknowledge the child by being a part of his daily life, or he can expressly acknowledge the child through a formal statement of any kind.
Legitimacy of child
No man is permitted to acknowledge the child of another man. The acknowledgment should be in a way that confirms the legitimacy of the child and not just their status. When the father acknowledges the child, he indicates that the child is legitimate and will get all the rights that are given to legitimate children under the Muslim laws in India. A child who was born by Zina cannot be acknowledged.
Child’s confirmation
When the child whose paternity is being acknowledged is an adult (18 years of age or above) should accept or confirm such acknowledgement. When such acceptance or confirmation is not given by the adult child, it may give rise to certain legal hurdles in the later stages. If there is no verification from the side of the child, then in that case evidence should be present to prove the same.
Intention to acknowledge
The father who is acknowledging paternity must have the real intention to do the same. There should not be any undue influence or coercion when such acknowledgement is given. The father should acknowledge paternity, knowing that such acknowledgement will lead to a rise in legal implications and rights between the father and child.
Effects of acknowledgment
When a father formally acknowledges a child/children, the child acquires legal recognition as a legitimate child in society and in aspects of inheritance, guardianship, various benefits related to health or education, respected societal position, etc. The father, on the other hand, also acquires many parental rights towards the child after acknowledgement of paternity.
After the acknowledgement of paternity, the father also gets the right to custody of the child. The acknowledgement acts as a legal way of establishing the father-child relationship. The father is now the legal custodian of the child. The rights of custody also included the right to make decisions on behalf of the child.
Acknowledgement vs adoption
| Acknowledgment | Adoption |
| In acknowledgement, the child is the actual descendant of the father and is his legitimate child. | In the case of adoption, the child is not an actual descendant of the adoptive parents and is also not their legitimate child. |
| Acknowledgement is recognized under the Muslim laws. | In Muslim law, the concept of adoption is not recognized as a legal notion. |
| When a child is acknowledged, they are the real children of the father. | The adopted children are the children of someone else. |
| When a child is acknowledged, such acknowledgment directly recognizes the child’s rights in the inheritance. | In cases of adoption, the children may not have direct rights in the inheritance of the adopted parents. |
Uniform Civil Code and its effect on paternity under Muslim law
The Uniform Civil Code (UCC) is a uniform set of laws that cover matters related to adoption, succession, inheritance, marriage, etc. The UCC is the same for all religions, communities, sexes, castes, and races. The UCC acts as a unified set of rules and regulations that are to be followed and applicable to all regions in India. One of the crucial aspects of UCC is how its implementation will affect the notion of acknowledgement of paternity under Muslim law.
Under Muslim personal laws, paternity is established through marriage, which means a child born out of wedlock will not be considered a legitimate child. Only a child born within a valid marriage is presumed to be a legitimate child. The main objective of the UCC is to introduce laws that are common and uniform in nature and will protect the rights of each individual. This will also include treating children equally, regardless of whether they are legitimate or illegitimate. The paternity of all the children must be acknowledged, and they should get equal rights.
The Uttarakhand UCC has several provisions on banning child marriage and polygamy in India, along with giving fair and equal rights to all children irrespective of their birth circumstances and the relationship of their parents at the time of their birth. All the children will have equal rights to inheritance and various other legal benefits. The Muslim laws are quite restrictive in nature when it comes to legitimate and illegitimate children, their rights to inheritance, and other aspects. The implementation of UCC will be a great shift in Muslim personal laws. The UCC is often criticised, stating that it will infringe on the freedom of religion and disrupt traditional practices that have been followed for years. Regardless of this, the importance of UCC is emphasised time and again in order to protect and promote the rights of all individuals and equality among genders.
Case laws and judicial interpretations
Muhammad Allahdad Khan and Anr. vs. Muhammad Ismail Khan and Ors. (1888)
In this case, the father died and left behind three daughters and two sons. After the death of the father, the eldest son of Allahabad Khan filed a suit. In the suit, he stated that, as the eldest son, he is authorised to inherit 2/7 of his father’s property. The son was the step-son of Allahabad Khan. The father had acknowledged the son several times, which the son proved by providing letters which were sent to him by this father. These letters acted as proof of acknowledgement of the son by this father. The plaintiff, with the help of the letters, proved his acknowledgement and established that he was the son of Allahabad Khan (deceased) and is entitled to get a portion of his property as well.
Syed Habibur Rahman Chowdhury vs. Syed Altaf Ali Chowdhury (1921)
The intention of acknowledgement is equally important as the acknowledgement of paternity. A mere acknowledgement does not hold importance. There has to be an intention to accept the child as his legitimate child. The acknowledgement must not be done for the sake of completing a legal formality. In this case, it was stated that an acknowledgement is not merely stating that it is their child; it also includes recognizing the child as a legitimate offspring. The age gap between the father and child must be believable. The age gap should not be impossible by nature; a minimum of 12.5 years is necessary to recognize such a relationship. The age gap between the child and the father should be biologically possible.
Muhanmmad Azmat vs. Lalli Begum (1881)
In this case, it was observed that acknowledgement can be either implied or expressed. If the father regularly treats the child as his own and recognizes the child as well, then it can be referred to as an express acknowledgement of paternity. The father, with his actions, treats the child as legitimate. In this kind of acknowledgement, there is no need for any evidence to prove the relationship between the father and child. This type of action acts as a valid presumption that the child is legitimate.
Usmanmiya Abdullamiya and Anr. vs. Valli Mahomed Husainbhai and Anr. (1915)
In this case, it was observed and discussed that once an acknowledgement is made, it cannot be revoked. It is considered to be permanent in nature. And when an acknowledgement of paternity takes place, the acknowledgement must be only of a legitimate child. The child that is being acknowledged must be his own child, born out of a valid marriage. A person cannot acknowledge another man’s child as their own.
Mohamed Khan Sahib vs. Ali Khan Sahib and Anr. (1980)
It was observed by the Madras High Court in this case that the acknowledgement of paternity will not be used if the parents do not have a valid marriage. If the father and mother of the child are involved in an adulterous relationship, this doctrine of acknowledgement will not be used. The assumption of marriage should be there. This application of acknowledgement of paternity takes place when there is some uncertainty about the marriage’s existence. When a child is born out of zina (adultery), the child cannot be acknowledged. The acknowledgement of paternity does not recognise children born out of zina to be legitimate children, even after acknowledgement.
Conclusion
In Islamic law, patriarchy plays a very crucial role. Acknowledgement of paternity ascertains the position of the child in society. The father is the only legal guardian of the children under Muslim laws. Acknowledgement of the child by any means, whether it is acknowledgement by marriage or acknowledgement of paternity, is significant. The father of the child, be it a daughter or a son, has to acknowledge the children. The rights of the child in relation to inheritance, guardianship, or any other financial assistance depend totally on the acknowledgement. Many Islamic laws are based on gender roles. Over the course of time, these rules and regulations are being amended, giving both men and women equal rights in modern times.
Frequently Asked Questions (FAQs)
What is the difference between paternity and legitimacy?
When a child is born out of wedlock, that child is considered as a legitimate child. The legal status of the child can be referred to as legitimacy. The legitimacy of the child plays a key role in determining the child’s rights to inheritance from the parents. The legitimacy of the child depends on the marital status of the parents when the child is born.
Paternity is the relationship between the father and his legitimate son. Paternity identifies the relationship from the perspective of biology. When paternity is acknowledged by the father in Muslim laws, the child and father both have rights relating to guardianship, inheritance, and custody related matters. Acknowledgement of paternity is a very important aspect of Muslim law.
Can a father make an acknowledgement of paternity for an adopted son/daughter?
In Muslim law, the concept of adoption is not followed. A father cannot acknowledge paternity when the child is adopted.
Which section of the Indian Evidence Act, 1872, addresses the determination of a child’s legitimacy in India?
Section 112 of the Indian Evidence Act, 1872, determines the legitimacy of the child in India, stating that a child born during a valid marriage or within 280 days after its dissolution, with the mother remaining unmarried, is considered legitimate. This provision applies to both Muslim and non-Muslim children.
References
- https://www.researchgate.net/publication/264506117_Paternity_between_Law_and_Biology_The_Reconstruction_of_the_Islamic_Law_of_Paternity_in_the_Wake_of_DNA_Testing
- India – Family Law – Concept Of Paternity And Acknowledgment Of Child In Islam (mondaq.com)
- 3 3 47 515 | PDF | Legitimacy (Family Law) | Marriage (scribd.com)
- LAW AB INITIO: ACKNOWLEDGEMENT – Muslim LAW
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