Acknowledgement of Paternity under Muslim Law

INTRODUCTION

Paternity, How Established : 

The paternity, a relation of child and his father, cannot be established by fact. It can only be established by marriage with the mother of the child. The marriage may be either valid or irregular but it must not be void. Maternity is fact whereas paternity is a presumption. If paternity is established the child is to be legitimate. An illegitimate child has only maternity and no paternity under Sunni Law on the other hand such child has neither paternity nor maternity under Shia Law.

Legitimacy : 

A child to be known as legitimate must be the result of lawful wedlock. Muslim Law insist on the existence of a valid marriage between the begetter and the bearer of the child at the time of its conception. The main point in the case of legitimacy of a child is marriage between its parents. The Privy Council held in the case of Habibur Rahman Chowdhari v Altaf Ali Chowdhari, (1921) 48 IA 44 . A son to be legitimate must be the offspring of a man and his wife or of a man and his slave, any other offspring is the offspring of the gina, that is, illicit connection, and cannot be legitimate. Therefore, under Muslim law, direct or indirect marriage between the father and mother of the child can establish the legitimacy of a child. If no direct proof, the existence of a lawful marriage may be presumed by– (i) a prolonged cohabitation of a man and a woman(not prostitute); (ii) a man acknowledges a woman as his wife; (iii) that man acknowledges himself as father of a child. In Sadiq Husain v Hashim Ali, (1916) 43 IA 212, 234. - 30  .An acknowledgement cannot legitimate a child who is proved to be illegitimate.

Presumption of Legitimacy under Islamic Law : 

(i) A child born within six month of the marriage is illegitimate unless the father acknowledges it. 

(ii) A child born after six month of the marriage is presumed to be legitimate, unless the putative father disclaims it by lian. 

(iii) A child born after the dissolution of marriage is legitimate if born– 

(a) Under Shia law, within 10 months.  

(b) Under Hanafi Law, within 2 years. 

(c) Under Shafie Maliki Law, within 4 years. These rules have now become outdated because Islamic law of the presumption of legitimacy is not applicable in India.

The Present Law of Legitimacy : 

In India, the conclusive proof of the legitimacy of a child (whether Muslim or Non-Muslim) is determined under the provisions of the Indian Evidence Act, 1872– 

(i) that any person born during the continuance of a valid marriage between his mother and any man; (ii) the person born with in 280 days after the dissolution of marriage, the mother remaining unmarried. Note : Unless it can be shown (in both the cases) that the parties to the marriage had no access to each other at any time when the person could have been begotten.

Difference Between Present Law and Islamic Law : 

(i) Under Muslim law, a legitimate child should not only be born but also be conceived during a valid marriage while under the Evidence Act, a child is presumed to be legitimate even if it is born the next day after the marriage unless it is shown that parties could not have access to each other when it could have been begotten. 

(ii) Under Muslim Law a child born within 2 years (or in 4 years under Shafie & Maliki schools) after the dissolution of the marriage may be legitimate whereas in Evidence Act a child born after 280 days can never be treated as legitimate.

Acknowledgement of Paternity (Ikrar-e-Nasab) : Where the paternity of a child, i.e. its legitimate descent from its father, cannot be proved by establishing a marriage between its parents at the time of its conception or birth, such marriage and legitimate descent may be established by acknowledgement. Acknowledge here means a declaration ascertaining the paternity where, although the marriage exists but the child's paternity is doubtful because no direct proof of marriage. An acknowledge need not be express, it may be presumed from the fact that one person has habitually and openly treated another as his legitimate child. The child may be a son or a daughter.

Muhammad Allahdad Khan v Muhammad Ismail, 1LR (1987) 10 All. 289. - 31  : The father of Allahdad Khan, a Sunni, died leaving behind two sons and three daughters. Allahdad filed a suit to be the eldest son of the deceased and was therefore entitled to a 2/7 of the share in the estate. The defence was that the plaintiff was only step-son of father having been born of their mother before she married their father, the deceased. The plaintiff contended that even if he failed to prove the son of the deceased but he had been acknowledged as the son of deceased on several occasions. Justice Mahmood, held that the plaintiff had established himself as the legitimate son of the deceased and was, therefore entitled to succeed to him. 

Conditions of a valid acknowledgement : 

The paternity of a child will be established in a man, if the following seven conditions are fulfilled– 

1. Intention to Confer Legitimacy : The acknowledgement must not be merely of sonship, but of a legitimate sonship. Mere casual acknowledgement, not intended to confer the status of legitimacy, will not be a legal acknowledgement. 

2. Age of the Acknowledger : The age of the parties must be such that they may be father and son, i.e. the acknowledger must be at least twelve and a half years older than the person acknowledged. 

3. Child of Others : The child so acknowledged must not be known to be the child of another. 

4. Person Acknowledged Should Confirm.

Acknowledgement : 

The acknowledged person must believe himself (or herself) to be the acknowledger's child and the child must verify (or at least must not repudiate) the acknowledgement. 5. Legal Marriage Possible Between Parents of the Child Acknowledged : The parents of the child acknowledged must not be in any prohibited relationship (either by consanguinity, affinity etc). The marriage should be possible at the time when the child was begotten. 6. Competency of the Acknowledger : The acknowledger must possess the legal capacity for entering into a valid contract, that is, he should be adult and sane.

7. Offspring of Zina : The child acknowledged must be the result of lawful wedlock, that must not born either without marriage, adultery, of a void marriage etc. Legal Effects of Acknowledgement : 1. By acknowledgement, the child becomes the legitimate issue and its paternity is established. 2. On being legitimate issue, the child is entitled to inherit the properties of the acknowledger, its mother as well as of other relatives. 3. Acknowledgement also establishes a lawful marriage between the child's mother and the acknowledger. The child's mother gets the status of the wife of the acknowledger and she is also entitled to inherit the properties of her husband (acknowledger).

Where the paternity of a child, i.e., its legitimate descent from its father, cannot be proved by establishing a marriage between its parents at the time of its conception or birth, such marriage and legitimate descent may be established by “acknowledgement”.

An acknowledgement of paternity need not be express. Such an acknowledgement may be presumed from the fact that one person has habitually and openly treated another as his legitimate child. As observed by the Privy Council, “It has been decided in several cases that there need not be proof of an express acknowledgement, but that an acknowledgement of children by a Muhammadan as his sons may be inferred from his having openly treated them as such.” (Muhammad Azmat v. Lalli Begum 1881 9 I.A. 8)

Paternity of a child is established if the child is born during continuance of a valid marriage or within 280 days of its dissolution, the mother remaining unmarried.

Maternity of a child is established in the woman who gives birth to the child; it is immaterial whether the child is an offspring of a valid or irregular marriage, or even of a fornication or adultery.

Principle of the Doctrine of Legitimacy by Acknowledgement:

This is a special mode prescribed by Muhammadan law for establishing the legitimacy of a child and the marriage of its mother. Since a marriage among Muslims may be constituted without any ceremony, the existence of a marriage in a particular case may be an open question. If no direct proof of such marriage is available, indirect proof may be relied upon. Acknowledgment of legitimacy of a child is one of the kinds of indirect proof.

Thus, under certain conditions, if a Muslim acknowledges a child to be his legitimate child, the paternity of that child is established in him. But the doctrine applies only to cases where the fact of an alleged marriage is an uncertainty.

It cannot be availed of to legitimise a child who is known to be illegitimate. The doctrine of legitimacy by acknowledgement proceeds entirely upon an assumption of legitimacy and establishment of legitimacy by the force of such acknowledgement.

Conditions of a Valid Acknowledgement of Legitimacy:

Muhammadan law prescribes a special mode of establishing the legitimacy of a child. When a man either expressly acknowledges, or treats in a manner tantamount to acknowledgement of, another as his lawful child, the paternity of that child will be established in the man, provided that the following seven conditions are fulfilled:

1. The acknowledger must possess the legal capacity for entering into a valid contract.

2. The acknowledgement must not be merely of sonship, but of legitimate sonship.

3. The ages of the acknowledger and the acknowledged must be such as to admit of the relation of parentage, i.e., the acknow­ledger must be at least twelve-and-a-half years older than the person acknowledged.

4. The person to be acknowledged must not be the offspring of intercourse which would be punishable under Muhammadan law, e.g., adultery, incest or fornication.

5. The parentage of the person to be acknowledged must not be unknown, i.e., the child to be acknowledged must be known to be the child of some other person.

6. The acknowledged person must believe himself (or herself) to be the acknowledger’s child, and the child must verify (or at least must not repudiate) the acknowledgement.

7. The acknowledger should be one who could have lawfully been the husband of the mother of the child, when it was be­gotten. Thus, where there is direct proof that there was no marriage between the man and the mother of the child, or that if there was such a marriage between them, it would have been void, and then the presumption of legitimacy cannot be raised by acknowledgement, however strong such presumption may be. (Rashid Ahmed v. Anisa Khatun, (1932) 34 Bom L.R. 475 PC. 59 I.A. 21)

In Rashid Ahmed’s case, A, a Muslim, divorced his wife B, by three pronouncements of talak, but afterwards, continued to co­habit with her, and to treat her as his wife for fifteen years. During this period, five children were born to them, all of whom he treated as his legitimate children.

However, the Privy Council held that the children were illegitimate. In this case of divorce by three pronouncements, before A and В could remarry, В should have been married to another man in the interval and divorced by that man.

As there was no proof of such marriage with another man and a divorce by him, a presumption of remarriage between A and В could not be raised, and hence, the children were held to be illegitimate, and could not inherit from their father.

 The observations of the Allahabad High Court on acknowledgement of paternity in Muhammad Allahabad v. Muhammad Ismail (1888-10- All. 289) are relevant. In that case, the Court observed:

“The Muhammadan law of acknowledgement 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 a marriage, necessary to render the child legitimate, being disproved.

The doctrine relates only to cases where either the fact of the 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 law, as distinguished from disproved. In other words, the doctrine applies only to cases of uncertainty as to legitimacy, and in such cases, acknowledgement has its effect, but that effect always proceeds upon the assumption of a lawful union between the parents of the acknowledged child.”

SHABNAM HASHMI vs. UNION OF INDIA & ORS., Writ Petition (Civil) No. 470 Of 2005

In case of 'Shabnam Hashmi vs the Union Of India', Writ Petition (Civil) No. 470 Of 2005,the Supreme Court has decreed that prospective parents irrespective of their religious background are free to adopt children after the prescribed procedure. The court in it's order said that 'personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute.

In this notable judgment, the Supreme Court of India declared that the right to adopt a child by a person as per the provisions of the Juvenile Justice Act would prevail over all personal laws and religious codes in the country. The 3 judge bench consisting of Chief Justice P. Sathasivam and Justices Ranjan Gogoi and Shiv Kirti Singh however maintained that personal laws would continue to govern any person who chooses to submit himself until such time that the vision of a uniform civil code is achieved.

The petitioner, Ms. Shabnam Hashmi had moved this court back in 2005 after she was told that she had only guardianship rights over a young girl she had brought home from an adoption home. Being a Muslim, she was subject to the Muslim Shariat Law which did not recognise an adopted child to be on par with a biological child.

In her plea, Ms. Hashmi wanted the right to adopt and the right to be adopted to be recognised as Fundamental Rights. The bench however rejected the plea by stating that the sphere of practices and beliefs in the country reflected a conflicting thought process amongst the people.

The Hon’ble Court also stated that adoption was a matter of personal choice and there was no compulsion on any person to adopt or adopt child.

The Juvenile Justice Act, 2002 defines adoption in Section 2(aa). It confers upon the adoptive parents and the child all rights, privileges and responsibilities that are attached to a normal parent child relationship.

With this declaration, prospective parents, irrespective of their religious background would be free to access the provisions of the Juvenile Justice Act – a secular act, for adoption of children after following the procedure prescribed. 

For better explanation of the above case, when Shabnam Hashmi visited her first adoption centre in New Delhi’s suburbs, she was told that they didn’t have any Muslim children. Shabman Hashmi who had a son wanted to adopt a daughter to make a complete family. However she learnt that Muslims cannot adopt or be adopted and if they want to do so it can only be done by virtue of The Guardians and Wards Act, 1890, which doesn’t give a legal status of biological parents nor does adoptee have any rights of inheritance. She filed a Writ Petition in the Supreme Court in 2005 to give the Muslim parents the same status as that of a biological parent and to recognize adoption as a fundamental right under Article 21. An alternative prayer was made requesting the Court to lay down optional guidelines enabling adoption of children by persons irrespective of religion, caste, creed etc. and further for a direction to the respondent Union of India to enact an optional law for facilitation of adoption irrespective of religious considerations. The Court disposed the matter on 19^th February ’14, without issuing any such direction, but it emphasized that the provisions relating to adoption under the Juvenile Justice (Care and Protection of Children) Act, 2000 can be availed by any person notwithstanding the position of adoption under the personal law. The JJ Act, 2000 introduced a separate chapter i.e. Chapter IV under the head ‘Rehabilitation and Social Reintegration’ for a child in need of care and protection. Such rehabilitation and social reintegration was to be carried out alternatively by adoption or foster care or sponsorship or by sending the child to an after-care organization. 

Section 41 contemplates adoption though it makes it clear that the primary responsibility for providing care and protection to a child is of his immediate family. Sections 42, 43 and 44 of the JJ Act, 2000 deal with the alternative methods of rehabilitation namely, foster care, sponsorship and being looked after by an after-care organization. The JJ Act, 2000, however did not define ‘adoption’ and it is only by the amendment of 2006 that the meaning thereof came to be expressed in the following terms:

“2(aa)-“adoption” means the process through which the adopted child is permanently separated from his biological parents and become the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship”

Nevertheless, the Supreme Court did not recognize adoption as a fundamental right under Article 21 and claimed self-restraint. The Court’s refusal to the right to adopt is an integral part of Article 21, which guarantees the right to life and liberty, is not convincing. In this era of judicial activism it is absurd to say that the Supreme Court has no Constitutional responsibility to discharge the obligation under Article 44 to strive towards the enactment to a Uniform Civil Code is not satisfactory.