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Acknowledgement of Child under Muslim Law

Once a child is born, the relationship it shares with his/her mother and father is known as parentage. The legal relation between the mother and the child is termed as maternity, which can be easily established through birth. On the other hand, the relationship that a child shares with his/her father is known as paternity.[1]

Maternity of a child can be easily established by birth iteself, as per Section 388 of the Act[2]. Marriage is not an essential prerequisit to establish Maternity as it can simply be established through birth. The mere check of maternity is whether the woman who claims to be the mother of a child actually gave birth to the child or not, and this test is valid even if the child is not born through marriage but may be born by zina, which is fornication or adultery.[3]

Paternity, as defined in Black's Law Dictionary is the identity of a father, both legally and biologically[4]. As a matter of fact it has a different process of establishment as compared to maternity.

A child gains paternity by either of the two ways:
  1. Marriage:
    It may be valid (sahih), or irregular (fasid), but not void (batil).[5]
     
  2. Acknowledgement:
    If a child is born at a time when the parents are not married or a woman bears in her womb, the child of a man but before his/her birth, she marries another man then the paternity needs to be recognised by law and the father should acknowledge the child legally. Once this acknowledgement is done, he can be recognised as the legal father of the child and the child gets a legal identity as well as legal rights.
Most of the above mentioned facts and rules have been established in one of the major landmark cases pertaining to Muslim law, that is Habibur Rehman v. Altaf Ali[6] in which the majority opinion of the bench was that a child born where a marriage is disproved, that child cannot be recognised as a legitimate child.

Under Muslim law, a child can be said to be unlawful (zina) or illegitimate if it is not born to a man and wife or a man and his slave. Legitimacy of a child can purely be established by marriage. In zina even if the parents of an illegitimate child can validly marry each other in the future, it cannot be regarded as a legitimate child post that. The rule was established in the case of Habibur Rehman Chaudhary v. Syed Altaf Ali Chaudhary[7]

Acknowledgement Of Legitimacy

Acknowledgement is the process of recognising a child legally, thereby creating legal rights. One of the landmark cases that holds immense significance on the study of Acknowledgement of a child under Muslim law is Muhammad Allahabad v. Muhammad Ismail[8], wherein it was held that adoption is not recognised in Islam. The case is validated by the Privy Council and relied upon by Indian Courts.

Adoption is not recognised[9] under the Mahomedan law and acknowledgement is the closest to the concept of adoption. Paternity, by a common general practice is established by way of marriage but in cases where the paternity of a child is not feasible to be proven by way of a wedlock entered into, by the parents, Mahomedan Law recognises acknowledgement as a valid method to establish the marriage and a legitimate descent for the motive of inheritance[10].

Limits To This Doctrine

Certain conditions that hinder the applicability of this doctrine to a case are:
  • If an association validated by the law is not possible between the parents of a child.
  • If the marriage between the parents is disproved.
In other words, this rule can be applicable to a case where the marriage between the parents is not proven, but not if it is explicitly disproved. There is a significant line of distinction between the two. Basically, the rule can be substantiated to hold relevance in a case of uncertainty.[11]

As established by the certain laws and precedents set by landmark cases, it can be said that the Muslim Law recognises a child to be legitimate on the legitimacy status of his/her parents' marriage. If a matrimonial alliance between the parents is not possible naturally, or by way of law, the child under no circumstances can be acknowledged. Whether implied or express, the acknowledgement is only valid when it fulfils the prerequisites required.

Who Is Competent To Acknowledge?

Any person who is of sane mind, has reached the age of majority as per the law and is not prohibited under law to enter into such a contract can acknowledge a child. If the person acknowledging a child is either dumb or deaf, it can do the same in sign language. In the case of acknowledgement of twins, the process to acknowledge one will be parallel to acknowledge both because both the twins have stemmed from the same source. Acknowledgement by its nature is an irrevocable process.[12]

Conditions Of A Valid Acknowledgement

The conditions that must be fulfilled to validate an acknowledgement are:
  • The persons must be capable of contracting.
  • The acknowledgement must mean to accept the other not only as his son, but his legitimate son.[13]
  • The ages of the parties must be such as to admit of the acknowledger being the father and the person acknowledged.[14] The minimum age difference between the two parties must be twelve and a half years. (Baillie, 411).
  • The child being acknowledged should not be born of zina, i.e. adultery, incest or fornication.[15] The case of a disproved marriage would be the issue of fornication.[16]
  • The person acknowledged must not be the child of another man.[17]
  • The acknowledgement should be accepted by the person being acknowledged.[18]
  • Once acknowledgment is made, it cannot be revoked.[19]
  • Acknowledgement may be expressed or implied.

Above mentioned are certain conditions that validate the acknowledgement of a child under Muslim Law. From the conditions given, it can be established that there must be good faith on the part of the acknowledger to take the person being acknowledged as his legitimate child and not merely as an acknowledged entity, the person must not be an outcome of ziha nor should it be already acknowledged by any other person.

If there is a situation where a Muslim man gives a divorce to his wife but the two keep on living together and there is a child born in that phase he will not be regarded as a legitimate child even in a situation where the biological father acknowledges him because at that time there was no valid marriage that existed. The rule was established in the case Rashid Ahmed v. Anisa Khatun .[20]

If somebody has habitually given another person, the treatment of a legitimate child, in complete good faith, it can be held as acknowledgement by conduct[21]. It is not mandatory that the acknowledgement be expressed only. It can be implied.[22]

In the case of Muhammad Azmat v. Lalli Begum[23] it was said, It has been decided in several cases that there need not be proof of an express acknowledgement, but an acknowledgement of children by a Mahomedan as his sons may be inferred from his having openly treated them as such.[24]

Acknowledgement By A Mother

If a woman acknowledges a child, it does not hold any value if her husband does not validate the same. In other words, acknowledgement by a mother is subject to the discretion of her husband. This rule holds value, regardless of the fact that the child is a boy or a girl.

Rights Created By Acknowledgement:

Once a valid acknowledgement is done, there are certain rights that it creates, for the child, the father, as well as the mother. The rights thus created are discussed herein,

For The Child:

  • Identity of both the parents is known on legal records.
  • Rights of inheritance.
  • Social Security.

For The Father:

  • Parental rights get recognition in law.
  • Custody of the child.
  • Right to address adoption proceedings, if any.

Conditions To Prove A Valid Marriage

If a valid marriage (sahih) takes place between a man and a wife, and a child is born in that marriage then it is considered to be a legitimate child even if the process of a formal acknowledgement does not take place.

The conditions that validate a marriage are:
  • If a man and a woman have been staying together for a significant amount of time[25] the condition to validate this kind of marriage is that the woman should not be a prostitute.
  • If a man acknowledged the woman as his wife.[26]
  • If a man acknowledges the paternity of a child born to a woman, and the conditions of a valid acknowledgement as mentioned in 334[27] are abided by.[28]

Rules For Presumption Of Legitimacy

The rules pertaining to presumption of legitimacy are followed by both Shias as well as Sunnis.

The three broad rules[29] relating to presumption of legitimacy are:
  • If a child is born during the initial six months of a marriage and the father does not acknowledge it, it is considered to be an illegitimate child.
  • If a child is born after six months of a marriage and the father of that child disclaim it by the virtue of lian, it cannot be regarded as a legitimate child.
  • If the birth of the child takes place after the dissolution of marriage it is considered to be legitimate if:
Under Shia law, if the birth takes place within ten lunar months.
Under Hannafi law, if the child is born within two lunar years.
Under Maliki law, if the child is born within four lunar years.

Acknowledgement And Burden Of Proof

When a marriage between two persons takes place under the Mahomedan law, it may have been constituted in the absence of any ceremony and direct proof of marriage is not always available[30]. In the absence of direct proof, an indirect proof can be considered good to validate a marriage. Acknowledging a child can be regarded as one of the proofs of a valid marriage, as mentioned above. Such an acknowledgement should not be impossible to prove to be true.

In that case, a wife and a son can unjustly avail from that if there is no contradictory proof. When a good acknowledgement takes place, the marriage will be considered valid and the acknowledgement of the child legitimate unless the marriage is disproved.[31]

Until claimant establishes his acknowledgement, the burden of proof lies on him to prove a marriage. Once he establishes an acknowledgement, the onus is on those who deny a marriage to negative in fact.[32] The rule of burden of proof was further explained in the case of Mohammad Yusuf v. Mabboobunnissa.[33]

Legal Aspects Of An Acknowledgement
Once a valid acknowledgement of a child takes place and it is proved to be legitimate, there are certain effects of that acknowledgement in the sphere of law. The outcome of a valid acknowledgement is valid on the condition that the legitimacy is also valid. If in future the acknowledgement is declared invalid and the child is rendered illegitimate the legal aspect of such an acknowledgement does not exist anymore.

The effects[34] being talked about here are:
  • The person acknowledging takes the blame of the person acknowledged. The person can validly avail parental rights.
     
  • The person acknowledged is entitled to inheritance rights and can rightfully inherit the property of his/her parents by law. He also get maintenance rights.
     
  • Once an acknowledgement is made, it validates the status of the mother of that child as the wife of the man, i.e the father of the child. This in turn established the validity of their marriage and the woman can seek the property of the man as per the law.
     
  • Acknowledgement is irrevocable[35] on the part of the person acknowledging. It can be regarded as a permanent status.

Critical Analysis
A child can only be acknowledged by the husband of his/her mother, the man should according to the Mahomedan Law, be competent to acknowledge. The flexibility in the doctrine of such acknowledgement is that it gives attention to the husband of the mother of the child and not really its biological father.

If a child is born out of zina, no matter who its biological father is, it cannot be legitimised even if that father wants to acknowledge it. The Mahomedan Law contains no provision as to the rights of the biological father of a child.

A child cannot be regarded as a sinner if it is born through zina, but by virtue of him/her taking birth out of a wedlock, by way of zina, its legitimacy stands in question. It is the parents of the child that commit zina but the child since birth is forced to suffer the consequences like living without a parental identity. It was stated by the Hon'ble Supreme Court in the judgement of Gaurav Jain v. Union of India[36] that excluding a required foundation of life for a child is a crime against humanity and not providing it with the natural rights it is entitled to, is a crime against humanity. The basic pretext of the entire argument is that a child is not at fault if it is born out of incest, but it still has to suffer the consequences.

The rule laid down by the National Fatwa Council that a child cannot be considered as a legitimate child if it is born within the first six months of a marriage prohibits the rights of maintenance and inheritance rights that a child is entitled to. Furthermore, it hinders the mental and emotional support that the child can receive from his parents, especially the father.

Neither of the two parents of a child are responsible to maintain an illegitimate child under the shia law, and the mother but not the father is responsible to maintain an illegitimate child under Hanafi law. This rule in some aspects goes against Islamic Principals[37] laid down in the Holy book of Quran.

Conclusion
As per the Mahomedan Law, a child can be considered as a legitimate child if either of the two conditions are fulfilled. One, when a child is born as an outcome of a valid marriage and the birth does not take place in the prohibited period defined differently in different schools of Islamic law. In such a case, a formal acknowledgement is not required and the other is when the paternity of a child is not established so the father can acknowledge a child in compliance with the conditions of a valid acknowledgement mentioned above. This doctrine holds validity for both, daughters as well as sons.

If a child is born out of a wedlock, or in other words, if the issue is raised through ziha, even if the biological parents to that child marry in the future, the child cannot be said to be legitimised even if the father decided to acknowledge it. The acknowledgement by a mother is valid, in Hanafi school of law but holds less significance. If a child is acknowledged by way of acknowledging the mother of that child, she must be acknowledged by the husband or his heirs. An acknowledgement can be said to be implied by conduct; mere expression of acknowledgement is not an essential prerequisite to legitimise a child.

A valid acknowledgement, once ultimate cannot be revoked by the person acknowledging. Once the child has been legitimised, he can inherit the father's property and can also demand maintenance. Apart from the rights that the child gets after being validly acknowledge, the status of the mother of that child is also legitimised and she gains the status of the wife of the father of the child acknowledged.

Some aspects of the doctrine of acknowledgement under Mahomedan Law can be said to be discriminatory towards an innocent child merely on the fact that he is born out of a wedlock, and discriminatory for a natural father of a child on grounds that he did not comply with the conditions for a valid marriage or does not fall under the ambit of being able to acknowledge a child validly. Despite being the biological father of a child, a man can be prohibited from becoming the legal father of that child.

End-Notes:
  1. Shariat Act 1939, 337
  2. The Act referred to is the Shariat Act 1939.
  3. SIR D.F MULLA, Principals of MAHOMEDAN LAW, (20th Edition, 2013).
  4. Black's Law Dictionary.
  5. SIR D.F MULLA, Principals of MAHOMEDAN LAW, (20th Edition, 2013).
  6. Habibur Rehman v. Altaf Ali (1921) 48 I.A. 114, 120, 48 Cal. 856, 60 I.C. 837, (22) A.P.C. 159.
  7. A.I.R 1992, P.C 159
  8. (1888) 10 All. 289.
  9. Muhammad Umar v. Muhammad niaz-ud-Din (1912) 39 Cal. 418, 39 I.A. 202, 7 Luck. 194, 136 I.C. 745, (,32) A.PC. 137.
  10. SIR D.F MULLA, Principals of MAHOMEDAN LAW, (20th Edition, 2013.)
  11. P. Diwan, MUSLIM LAW IN MODERN INDIA, (5th Edition, 1991.)
  12. Supra, note 6.
  13. Supra, note 6.
  14. Supra, note 6
  15. Mohammad Hanif v. Badarannesa (1938) 42 C.W.N. 272.
  16. Dhan Bibi v. Lalon Bibi (1900) 27 Cal. 801.
  17. Usmanmiva v. Valli Mahomed (1916) 40 Bom. 28, 30 I.C 904.
  18. Supra, note 6.
  19. Asharfod Dowlah v. Hyder Hussain, (1866) II MIA 94.
  20. Rashid Ahmed v. Anisa Khatun , (1932) 34 Bom L.R. 475
  21. SIR D.F MULLA, Principals of MAHOMEDAN LAW, (20th Edition, 2013.)
  22. Masit-un-nissa v. Pathani (1904) 26 All. 295.
  23. (1881) 9 I.A. 8, 18, 8 Cal. 442.
  24. SIR D.F MULLA, Principals of MAHOMEDAN LAW, (20th Edition, 2013.)
  25. Khajah Hidayat v. Rai Jan (1884) 3 M.I.A. 295, 317-318, 323
  26. Mt. Bashiram v. Mohamman Hussain (1941) 16 Luck. 615.
  27. The Shariat Act 1939. 334.
  28. Mohamed Amin v. Vakil Ahmed (52) A.SC. 358.
  29. Liaquat Ali Siddiqui, The Legal Status of a Child Under Muslim Law, (1994) 5 DULJ 87.
  30. SIR D.F MULLA, Principals of MAHOMEDAN LAW, (20th Edition, 2013.)
  31. SIR D.F MULLA, Principals of MAHOMEDAN LAW, (20th Edition, 2013.)
  32. Supra, note 6.
  33. Mohammad Yusuf v. Mabboobunnissa Begum (1971) 1 A. W.R 97.
  34. Yawer Qazalbash, Principles of Muslim Law (2nd edition, 2005).
  35. Supra, note 19.
  36. Gaurav Jain v. Union of India. (1997) 8 SCC 114; AIR 1997 SC 3021.
  37. no soul shall bear the burden of another soul (Surah Al-Baqarah, 2:286)

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