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LEGITIMACY AND PARENTAGE (JAYAJ AUR RISHTA)
LEGITIMACY AND PARENTAGE (JAYAJ AUR RISHTA)
The concept of legitimacy of children is the direct outcome of the concept of marriage. Society that recognises the institution of marriage also recognises the legitimacy of children born within lawful wedlock; and vice versa, those born outside the wedlock are illegitimate. Muslim Law is very harsh on illegitimacy, yet fairly liberal in the rules on legitimacy. Extramarital sexual relationship of any kind is condemned as zina and is severely punishable. According recognition to marital status mitigates the perils of illegitimate relationship, which is how off-springs of Muta marriages are legitimate.
Parentage is the relationship of parents to their child or children. Paternity is the legal relation between father and child. Maternity is the legal relation between mother and child. Depending on paternity and maternity are such things as guardianship, maintenance and inheritance.
Sunni Law (like other legal systems) recognises the status of maternity irrespective of the fact whether she is married or unmarried, and even if the child is the outcome of zina. So the child can inherit from its mother. But under the Shia Law mere birth is not enough to establish maternity. A child born of adultery, incest or fornication is an illegitimate child and is devoid of maternity in the woman who gave birth to it; so he cannot inherit from her. Thus, there is a legal status to maternity and is a legal relationship.
Paternity is the legal relationship between the child and its begotten. It is based in turn, on the legal relationship between the woman who gave him birth and the man who begot him- there must be a tie of marriage between the woman and the man; he must be the husband of the child's mother. The marriage must be valid, may be even irregular, but not void or batil; neither Sunni Law nor Shia Law gives any credence to paternity if the marriage was batil. The fact of marriage is proved by either direct proof or by presumption, the latter in three conditions-by prolonged cohabitation, by acknowledgement by father or by acknowledge of the woman as wife.
The question of legitimacy is directly connected with paternity, because, the maternity of a child is always established in the mother, irrespective of the fact whether the child is legitimate or illegitimate. When paternity is established, legitimacy is also established. The main point in the case of legitimacy of a child is marriage between its parents.
The paternity of a child cannot be established by a Muslim if he adopts a child of whom he is not the actual father. Thus, there is no legitimation in Islam.
Muslim Law, however, provides that in certain circumstances where marriage between the parents of child cannot be proved, "acknowledgment of paternity" by father is permissible.
Thus, there is no mode or method recognised by Muslim law to legitimate an illegitimate child. Muslim Law insists that conception in order to render a child legitimate should take place after the marriage, actual or semblable. There are two methods through which legitimacy (and parentage) is established:
a) by birth during a regular (also irregular but not void according to Hanafis) marriage, or
b) an acknowledgment.
Presumptions of legitimacy
The circumstance in which legitimacy (or illegitimacy) is presumed are-
i. A child born within 6 months of the marriage is illegitimate, unless the father acknowledges it.
ii. A child born after 6 months of the marriage is legitimate, unless the father disclaims it.
iii. A child born after the termination of marriage is legitimate, if born -
within 10 lunar months (Shia Law);
within 2 lunar years (Hanafi Law); and
within 4 lunar years (Shafii and Maliki Law).
iv. According to Section 112, Indian Evidence Act, a child born during the continuance of a valid marriage, or within 280 days after its dissolution (during which period the widow remains unmarried), is legitimate, unless it is proved that the husband and wife had no access to each other at any time when the child could have been begotten.
Presumption of legitimacy from presumption of marriage. - Muslim Law has always been in favour of legitimacy of children and has considered the children of void marriage alone as illegitimate. To avoid illegitimacy, it accords recognition even to temporary marriages. Even when there was a semblance of marriage, Muslim Law construed it to be a marriage - the underlying idea being to confer the status of legitimacy on the children of such unions. Inference of marriage between the man and the woman would confer legitimacy on their child, unless disproved. A statement of the deceased father that he was married to the mother of the child, is evidence of a valid marriage, from which legitimacy of the child may be presumed.
Section 112, Evidence Act is not applicable to a void marriage. The most important irreconcilable point between the two systems is the basis of legitimacy: while in Muslim Law it is the point of time of conception, under the Evidence Act it is birth.
Acknowledgment of paternity (legitimacy) (Iqrar)
Muhammadan Law of acknowledgment of parentage with its legitimating effect has no reference whatsoever to cases in which the illegitimacy of the child is proved and established, either by reason of a lawful union between the parents of the child being impossible (as in the case of an incestuous intercourse or an adulterous connection), or by reason of marriage necessary to render the child legitimate being disproved. The doctrine relates only to cases where either the fact of marriage itself or the exact time of its occurrence with reference to the legitimacy of the acknowledged child is not proved in the sense of the law as distinguished from disproved.
Thus, the doctrine of acknowledgment applies only to cases where either the fact or the exact time of the alleged marriage is a matter of uncertainty, that is, the marriage has neither been proved nor disproved.
Acknowledgment may be (i) express, or (ii) implied. An express acknowledgment entails a formal declaration, whereas in implied, it is presumed from the fact that a person has openly and habitually treated another as his legitimate child.
Conditions of valid acknowledgment
There are seven essential conditions of a valid acknowledgment:
(i) Unknown paternity. - (a) Fact or exact time of marriage is not certain. - As marriage among Muslims may be constituted without any ceremonial, direct proof is by way of an acknowledgment of legitimacy in favour of a child.
(b) Paternity neither proved nor disproved. -It is necessary that marriage between the parents of the acknowledged child must neither be proved or disproved; it must be in a state of not proved, i.e. capable of being proved or disproved. (If already established, there will be no dispute, if already disproved legitimacy is ruled out.)
(ii) Intention to confer status of legitimacy. - The general principle of law is that acknowledging a child as son indicates accepting him as legitimate son. However, a casual acknowledgment would not confer the status of legitimacy. There must be an express intention to do so, i.e., it must be clearly stated that he is his legitimate son.
(iii) Acknowledger must be 121/2 years older than the acknowledged.- The limitation that the acknowledged might have been born of the acknowledger means that the age of the acknowledged should exceed the age of the acknowledged at least by twelve and half years, and this because it is the minimum period of puberty for a youth; and this limitation is necessary because if the acknowledger has not attained puberty, the acknowledgment would be falsified obviously.
(iv) Legal marriage must be possible between the parents of the person acknowledged.- The parents of the acknowledged child must not be in the prohibited degree of relationships. Such absolute prohibitions are on the points of (a) Consanguinity, (b) Affinity, (c) Fosterage, and (d) Polyandry.
If the parents are within the relatives degrees of prohibitions so as to make the marriage between them as irregular but not void, valid acknowledgment can be made of an issue of such a marriage. There can be no valid acknowledgement in cases where in the marriage itself is void under Muslim law.
(v) Person acknowledged must not be the offspring of zina.- An offspring of zina is one who is born either:
(a) without marriage, or
(b) of a mother who was the married wife of another, or
(c) of a void marriage.
(vi) Person acknowledged must not be known to be the child of another.- The Muslim Law of acknowledgment relates only to cases of uncertainly and proceeds on the assumption that the acknowledged child is not only the offspring of the acknowledger by blood, but also the issue of a lawful union. Thus, where a person is known to be the child of another, valid acknowledgment cannot be made.
(vii) Person acknowledged must not repudiate the acknowledgment. - The acknowledged child should verify acknowledgment, because, if the child does not verify, the child's descent is not established by the mere acknowledgment, but requires proof. However, if the child is too young, such a verification is not essential.
Rebuttal of acknowledgment. - The presumption of paternity by acknowledgment may be rebutted on the following grounds:
(i) Disclaimer by acknowledged person.- If the person acknowledged as "son" by the "father" subsequently refutes or disowns the acknowledgment, it becomes effectless.
(ii) On proof of real parentage.- If it is proved that the child acknowledged is the son of another person, the acknowledgment is nullified.
(iii) When mother not lawful wife.- When it is proved at the time when the son was conceived the mother could not be regarded lawfully wedded to the father, the acknowledgment by the 'father' is ineffective.
(iv) Age difference less than 121/2 years.- If the difference of age between the father and acknowledged child is less than 121/2 years, the acknowledgment is unacceptable.
Effects of acknowledgment
(i) Acknowledgment of child means acknowledgment of wife also.
(ii) It raises presumption of marriage.
(iii) It gives rights of inheritance to children, parents and wife.
(iv) Acknowledgment once made is irrevocable.
Position of adoption in Muslim Law
Though adoption is not recognised under Muslim Law, in the following circumstances it is applicable:
(1) A valid custom not abrogated by the Shariat Act, 1937.- Three points emerge clearly: (1) in general, Muslim Law does not recognise adoption, (2) adoption may be permitted among Muslims on the basis of custom, and (3) one who claims the basis of custom, will have to prove the existence of the custom. The person relying upon the custom must prove that such a custom has been in existence from time immemorial and must give specific instances of such custom.
(2) When the right of adoption is permitted by law.- Adoption has not been forbidden by the Shariat Act. Section 2 of the Shariat Act enlists the subjects (topics) of the Muslim family law which, not withstanding any custom to the contrary and superseding it, shall be governed by the provisions of Shariat Act (Muslim Personal Law) only; this schedule does not include adoption, that means this custom of adoption has been superseded, and therefore it can apply.
In Shabnam Hashmi v. Union of India, it was held that Muslims can adopt a child with full rights as natural parents under provisions of Section 41, Juvenile Justice (care and Protection of Children) Act, 2000 (JJ Act).