PARENTAGE

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Parentage- Maternity and Paternity

Parentage is relation of parent to their children. Maternity is a legal relation between mother and child and paternity is a legal relation between father and child. The term parentage is generally used for a legal relationship which a child has with his parents. When one person is deemed in law to be the father or mother of another, paternity or maternity or latter is said to be established in the former.1

MATERNITY- HOW ESTABLISHE Under Sunni Law, the maternity of a child is established in a women who gives birth to the child irrespective of whether the birth was whether the result of a wedlock or zina(adultery). However, under Shia Law, mere birth is not sufficient to establish maternity; it has to be also proved that the birth was the result of a lawful marriage. Thus under Muslim law a child born out of marriage tie is legitimate and enjoys the status of inheritance from father as well as the mother. But any child born of adultery, incest, or fornication is illegitimate. Under Sunni Law, an illegitimate child has its maternity in the women who gave birth to it and the child is entitled to inherit only from the mother alone. However under Shia Law an illegitimate child, has neither maternity in the women who gave birth to the child nor can paternity in the father, who begot it, as such under Shia Law, the illegitimate child inherit neither from mother nor from father.

Thus maternity is the legal status of a child which determines the succession and inheritance of its mothers estate while paternity is that which determines inheritance and succession of the paternal estate in favor of the child. If a man commits zina with a women and a child is born, ir is considered to be the child of its mother only and inherits from her and her relations under Sunni law. But the man is not considered to be the father of the child, for paternity is established only by marriage, nor is the child in law the child of the man; it is illegitimate and not entitled to inherit from him.

Tayabji: Muslim Law 5 ed. P. 199

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PATERNITY- HOW ESTABLISHED

The paternity of a child can only be established by marriage between its parents. The marriage may be valid or irregular but it must not be void.2 It is established in the husband of the mother of the child. Paternity is established in the person said to be the father by proof or legal presumption that the child was begotten by him on a women who was at the time of conception his lawful wife or was in good faith and reasonably believed by him to be such or whose marriage being merely irregular and not void ab initio has not at that time been terminated by actual separation.3 An issue of void marriage has has neither paternity nor maternity under the Shia law. That is, under Shia Law, a bastard is a fillius nullius i.e., a relation of none. Under Sunni Law an illegitimate child has only maternity and no paternity, i.e., the maternity and paternity of a child begotten in consequence of adultery merge together in the mother of child.

Gautam Kundu v. State of West Bengal4 The petitioner herein disputed the paternity of the child and prayed for blood group test of the child to prove that he was not the father of the child. According to him if that could be established he would not be liable to pay maintenance. That application was dismissed on the following two grounds:

There were other methods in evidence to disprove the paternity Moreover it is settled law that medical test cannot be conclusive of paternity.

Mulla: Mahommedan Law, 19 ed. P. 355 3 Wilson 4 AIR 1993 SC 22961

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Aggrieved by this order, a revision was preferred before the High Court. Dismissing the petition it was held that Section 122 of the Evidence Act says where during the continuance of a valid marriage if a child is born that is a conclusive proof about the legitimacy. Thus this section constituted the stumbling block in the way of the petitioner getting its paternity disproved by blood group test. The English Law permitting blood test for determining the paternity of legitimacy could not be applied in view of section 112 of the Evidence Act. Therefore, it must be concluded that Section 112 read with section 4 of the said Act debars the evidence except in cases of non-access for disproving the presumption of legitimacy and paternity. Blood test cannot show positively that any man is father, but they can show positively that a given man could not or could be the father. It is obviously the latter aspect that proves more valuable in determining paternity. The Supreme Court in this case had observed the following points: The court in India cannot order blood test as matter of course; Wherever application are made for such prayers in order to have raving injury, the prayer for blood test cannot be entertained. There must be a strong prima facie ease in that the husband must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act. No one can be compelled to give sample of blood for analysis. The Court must carefully examine as to what would be the consequences of ordering the blood test; whether it will have the effect of branding the child as a bastard and the mother as an unchaste women.

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LEGITIMACY
Muslim law insists on the existence of a valid marriage between the begetter and the bearer of the child at the time of conception. A person born in lawful wedlock is said to be the legitimate child of the spouses. The main point in the case of legitimacy of the child is the marriage between its parents.

Habibur Rehman Chowdhari v. Altaf Ali Chowdhari5 By the Mohammedan Law, 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 zina, that is, illicit connection; and cannot be legitimate. The term wife necessarily connotes marriage, but as marriage may be constituted without any ceremony; the existence of a marriage in any particular case may be an open question. Direct proof may be available, but if there is no such proof, indirect proof may suffice. Now one of the proof is by an acknowledgement of legitimacy in favor of a son.

Sadik Hussain v. Hashim Ali6 It was said that no statement made by one man that another (proved to be illegitimate) is his son can make that other legitimate, but were no proof of that kind has been given such a statement of acknowledgement is substantive evidence that the person so acknowledged is the legitimate son of the person who makes the statement provided his legitimacy be possible. In the case of maternity it is immaterial whether the child is the offspring of lawful wedlock or an offspring of unlawful union is adultery (zina).

5 6

48 IA 44 (1916) 43 IA 212, 234

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Gohar Begum v. Suggi7 The Supreme Court made a distinction between the child who was born out of a lawful union and the child was born out of an unlawful union. The court said that under the Hanafi Law, the woman who gives birth to a child shall be regarded as its mother irrespective of her legal relationship with begetter of the child.

Under the Ashari Law the child who was born out of lawful union is provided full protection. In case of lawful union only the lady is regarded as his mother. Where the lady is not married to the begetter at the time of the child conceptions, she will not be considered as the mother for the purpose of law. When the paternity of the child is established, its legitimacy is also established. Parentage is established in Muslim Law in one of the two ways and there is no third By birth during a regular(but not void marriage) By acknowledgement, in certain circumstances.

A. SPECIAL RULE REGAARDING PRESUMPTION OF LEGITIMACY According to Muslim Law the rules with regard to presumption of legitimacy are as follows: 1) A child born within less than six months after the marriage is illegitimate, unless the father acknowledges it. 2) A child born after six months of the marriage is presumed to be legitimate, unless the putative father disclaims it by lian. 3) A child born after the dissolution of the marriage is legitimate: a) Under Shia Law, if born within 10 lunar moths. b) Under Hanafi Law, if born within two lunar years. c) Under Shafei and Maliki Laws, if born within 4 lunar years.

AIR (1960) SC 93

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B. LEGITIMACY WHEN CONCLUSIVELY PRESUMED (SECTION 112 OF THE INDIAN EVIDENCE ACT) Section 112 of the Indian Evidence Act provides: The fact that any person born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man unless it can be shown that the parties to the marriage had no access to each other any time when he could have been begotten. As regards of a child born after 280 days of the dissolution of marriage, the Court may presume its legitimacy if it thinks the child is likely to be legitimate, regard being had to the common course of natural events in their relation to the fact of a particular case.

POINT OF DIFFERENCE BETWEEN TWO SYSTEMS: 1. Under Evidence Act, a child will be presumed to be legitimate even if it is born the next day after the marriage unless it as shown that its parents could not have access to each other when it could have been begotten. 2. A child born after six months from the date of marriage, but within 280 days of the termination of the marriage is legitimate under either system, subject to lian, in the one case and proof on non-access in the other. 3. A child, born after 280 days but within 2 years after the termination of marriage would be legitimate according to the Hanafi rule subject to lian. Under the Evidence Act, however the case will be governed by Section 114 of the said act which provides that the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events. In case of Ashraf Ali.8. before the passing of Indian Evidence Act, the Court declined to follow this part of rule of Mohammedan Law in case of a child born 19 months after date of divorce on the ground that to hold such a child was legitimate would be contrary to the course of nature and impossible

Ashraf Ali v. Arshad Ali, (1871) 16 WR 260 (Cal).

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The Evidence Act supersedes the rule of pure Muslim Law

The question arises whether the statutory provision of procedural law under the Evidence Act supersedes the provision under the provision of the substantive law. Opinions are divided but the balance of authority remains in favor of the Evidence Act. According to D.F.Mulla, the provisions of Evidence Act supersede the substantive law under Mohammedan jurisprudence. Ameer Ali,9 says that section 112 of the Indian evidence Act embodied the English rule of law and cannot be held to vary or supersede bu implication the rules of English law. Tyabji does not agree with the above opinion of Ameer Ali.

In A,G. Ramchandran v. Sahamsunnisa Bibi10 The Madras High Court had held that Section 112 of the Indian Evidence Act is generally in its terms and it applies to all persons including Mohammedans, who may have personal law of their own relating to legitimacy as there is no provision exempting them from the application of section 112. It may however be noted here that the provision of section 112 of the India Evidence Act is applicable only in case of a valid marriage. The Indian Court have held that the provision of Section 112 of the said act is shall not be applicable in cases of Marriages which are not valid.

Musamat Kaniz v. Hasan11 The chief court of Oudh has held that even if section 112 applied to Mohammedans, it cannot be applicable to an irregular (fasid) marriage as such a marriage is not a valid marriage within the meaning of the section : Valid in view of that Court means flawless. Where a marries women was driven out by the husband a few days after marriage on the ground of her concealed
9

Ameer Ali Mohameddan Law of the Indian E AIR 1977 Mad. 182 11 (1926) 48 All. 625
10

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pregnancy, and a child was born to her within 4 months after her being driven out, it was held that no presumption under section 112 of the Indian Evidence At could be raised as the marriage was void because of concealed illicit pregnancy.12 According to K.P. Saxena the Muslim law of legitimacy should prevail, as it is the substantive portion of the law, and section 112 ought not to be applied in such cases. On the whole the balance of the authority favors that the Evidence Act supersedes the substantive law under Muslim jurisprudence.

C. LEGITIMACY PRESUMED FROM PRESUMPTIVE MARRIAGE Where certain circumstances give rise to the presumption of marriage; they also give rise to the presumption of the legitimacy of the child.13

Mohammad Baukar v. Shurffon Nisa14 The Privy Council said: the legitimacy or legitimation of a child of Mohammedan parents may properly be presumed or inferred from circumstances without proof or at least any direct proof, either of a marriage between the parents, or any formal act of legitimation. In other cases the Privy Council observed that there had been a consecutive course of treatment both of the mother and of the child for the period of seven to eight years, which would not have been adopted except on the presumption of cohabitation or of the son being the issue of the putative father.15 Where inference of marriage between a man and a women or the child having been born in the lawful wedlock is possible, the Court will presume legitimacy, unless the contrary is most clearly and irrefutably be proved.16

12 13

Abdul Rehman Kutty v. Aisha Beevi AIR 1960 Ker, 101 M Haneefa v. Pathummal Beei 1972 KLT 512 14 8 MIA 136 15 Khajah Hidayat Ullah v. Rai Jan Khamun 3 MIA 295 16 Mossa Adam Patil v. Ismail Mossa 12 Bom. LR 169

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In disproof of legitimacy, no better class of evidence can be produced than the evidence of near relatives of the parties concerned or the evidence of the general family reputation.17

D. LEGITIMAVY AND LEGITIMATION Legitimacy is the fact of a child being legitimate under the Muslim law. It is the status of a child resulting from certain facts about the relationship between his parents. If legitimacy of a child is in doubt but not disproved, acknowledgement whether express or implied of its father confers upon it the status of legitimacy. If the child is proved to be illegitimate, no acknowledgement can legitimize it. Hence, acknowledgement is a mere declaration of the childs legitimacy- a status which it has always since birth. Legitimation as a process to confer legitimacy upon one who was never a legitimate child is known in Islamic Law.

Habibur Rahman chowdhury v. Altaf Ali Chowdhary18 One Habibur Rahman claiming to be a son of a Jewess Mozelle Cohen by Nawab Sobhan of Bogra and affirming the marriage of Mozelle Cohen with the Nawab and acknowledgement of his sonship by the deceased Nawab sued Altaf Ali the deceased Nawabs Daughters son and other for a share of inheritance. Held that the plaintiff, having failed to prove that the deceased Nawab acknowledged him as his son or married Mozelle Cohen, could not be regarded as natural son of the deceased and his suit must fail. In the course of their judgment, your Lordships observed: Legitimacy is a status which results from certain existing facts. Legitimation is a proceeding which creates a status which did not exist before. In the proper sense there is no legitimation in Mohammedan Law. Examples of legitimation properly so called, may be found in other systems, e.g., adoption of Hindu Law

17 18

Sadiq Hussain v. Hashim Ali 43 IA 212 AIR 1922 PC 159

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ACKNOWLEDGEMENT

Muslim law does not recognize the institution of adoption which is recognized by other systems. Under Hindi law adoption is intimately connected with religion having repose of the souls of the departed and the preservation of the household divinities. Ameer Ali says that Prophet Mohammad appeared to have recognized the custom at the time he adopted Zaid the son of Haris. Later, on when he had weaved the idolaters tribes from the revolting practice to which they were addicted and had given them higher ideas of domestic relationships. He explained in fuller terms that the adoption similar to what was practiced in the Days of Ignorance created no such tie between the adopted and the adopting as resulted from blood relationships. On the one hand Muslim law recognizes the institution of ikras or acknowledgement on the other hand it disproves legitimation.

Where the paternity of a child, that is, his legitimate descent from his father cannot be proved by establishing a marriage between his parents at the time of conception of birth, Muslim law recognizes acknowledgement as a method whereby such marriage and legitimate descent can be established as a matter of substantive law for the purpose of inheritance . Acknowledgement is not legitimate (or making one legitimate who was not so prior to acknowledgement). In Muslim Law, an acknowledgement of legitimacy is a declaration of legitimacy for the purpose of inheritance.

The Muslim Law of acknowledgement of parentage with 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 or by reason of marriage necessary to render the child legitimate being disproved. The doctrine of acknowledgement relates only to cases where either the facts of marriage itself or the exact time

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of occurrence with reference to the legitimacy of the acknowledged child is not proved in the sense of the law as distinguished from disproved.

Mohammad Khan v. Ali Khan19 Madras High Court observed that the doctrine of acknowledgement could be invoked only where the factum of marriage or the exact time of the marriage could not be proved and not to cases where lawful union between the parents of the child was not possible as in the case of incestuous intercourse or an adulterous connection and where the marriage necessary to render the child legitimate was disproved. In other words, the doctrine applies only to cases of uncertainty as to legitimacy, but the effect of acknowledgement always proceeds upon the assumption of a lawful marriage, between the parents of acknowledged child.

Muhammad Allahdad Khan v. Muhammad Ismail20 The father of Allahdad Khan, a Sunni, died leaving behind two sons and three daughters. The eldest son, Allahdad Khan filed a suit against his younger brother and three sisters and certain other persons alleging that je was eldest son of the deceased and was therefore entitled to a2/7 of the share in the estate. The defense 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 that he was the son of the deceased, he had been acknowledged as such by the deceased on several occasions and was, therefore, entitled to succeed as his son. He filed certain letters in which he had been referred to by the deceased as his son.

19 20

AIR 1981 Mad. 209 ILR (1987) 10 All. 289

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DecisionJustice Mahmood, held that so far as inheritance is concerned, the existence of consanguinity and legitimate is a descent as a condition precedent to the right to succeed, and such legitimate descent depends upon the existence of a Valid marriage between the parents. Where marriage could not be proved by direct evidence and no legitimacy established, Mohammedan Law prescribes a means whereby the marriage and legitimacy may be established as a matter of substantive law and that is acknowledgement of paternity. Acknowledgement under Mohammedan Law is a rule of substantive law and not a rule of evidence merely, like presumption under Evidence Act. It confers status of sonship and right to succeed. Such a acknowledgement always proceed on the assumption of valid union between the parents. Child whose illegitimacy is proved by reason of the union between the parents and not being lawful, cannot be legitimized by acknowledgement which id of effect only when either the fact of the marriage or its exact time with reference to the birth of the child is a matter of uncertainty. On the facts of the case it was held that the plaintiff had established himself as the legitimate son of the deceased and was, therefore, entitled to succeed him.

a) Necessity of acknowledgement of legitimacyWhen there is a direct proof of marriage or there are circumstances from which marriage may be presumed, the question of acknowledgement of legitimacy does not arise because in such case the legitimacy is ipso facto established or presumed to be established. If there is no such direct proof of legitimacy, indirect proof may suffice and one of the ways of indirect proof is by acknowledgement of legitimacy by father (not mother) in favour of a son. In other words, the doctrine applies only to effect but that effect always proceeds upon the assumption of a lawful union between the parents of the acknowledged child.

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S. Amanullah Husaini v. Rajamma21 The plaintiff filed a suit against the defendant Rajamma wife of one Habibullah Husaini and the brother of S. Amanullah, on the ground that she was only a maidservant of Habibullah Hussaini, and was living in the same house. She was not legally wedded wife nor is the second defendant his son. The court held that marriage may be established by indirect proof i.e., by presumption drawn from certain factors. It may be presumed from prolonged cohabitation or from acknowledgement of legitimacy in favor of a child.

In case of a good acknowledgement of legitimacy the marriage between the parents of child acknowledged will be held proved and this legitimacy established unless the marriage is disproved.22

In case, the marriage between the parents of the child could not be proved, the acknowledgement shall carry no force in the eyes of law. The acknowledger must acknowledge the child specifically.23

b) Basic principles of the doctrine The basic principle of the doctrine is that the Muslim jurists discountenanced the recognition of the issues which are the fruit of an adulterous intercourse, incest and fornication. When the child is known to be illegitimate, or proved to be the child of another or the women I married to another man, or the women is within prohibited degrees or she is a prostitute no amount of acknowledgement will render a child a legitimate child of the acknowledger. The doctrine applies only in the 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.
21 22

AIR 1977 Andhara 152 Mohammad Sadiq v. Mohammad Hassan AIR 1943 Lah 225 23 Habibur Rahman v. Altaf Ali AIR 1922 PC 159

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The doctrine of acknowledgement is applicable only where either the fact of the marriage itself or that exact time of its occurrence is neither proved nor disproved. In the case of a child who is proved to be the child of a third person, the acknowledgement shall carry no force.24

EXPRESS OR IMPLIED ACKNOWLEDGEMENT

It is not necessary that the acknowledgement should be express; it may also be implied. Where a person habitually and openly treat another as his legitimate child, this fact may give rise to a valid presumption of legitimacy. Their lordship of the Judicial Committee in Mohammad Azmat v. Lalli Begum25 Observed that it has been decided in several cases that their need not be prove of an express acknowledgement but that an acknowledgement of children by a MOhammaden as his sons may be inferred fron his having openly treated them as such. In Zamin Ali v. Azizunnisa26 the husband acknowledged the marriage with a particular lady, after his death it was disputed that the child as not the legitimate child of the deceased. It was held that where marriage between a person and the child mother was approved by the former, such a statement may be accepted as his acknowledgement of the childs legitimacy. The acknowledgement may be of son or of daughter, but it must be made by the father. The acknowledgement of the child must not be casual. In Mohabat Ali v. Md. Ibrahim27 the father made the acknowledgement of the child in a casual manner. He never intended that his acknowledgment should have serious effect. It was held that the act of the father is not sufficient to confer the status of legitimacy.

24 25

Usman Myan v. Vali Mohd. (1916) 40 Bom. 28 (1831) 91 A. 8,18 26 AIR 19 All. 329 27 AIR 1929 PC 15

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c) CONDITION OF A VALID ACKNOWLEDGEMENT When a man, expressly or impliedly, acknowledges other as his lawful child, the paternity of the child will be established in the man, provided, the following conditions are fulfilled:i. Intention to Confer Legitimacy- It must be a legitimate sonship. The acknowledgement must be in such a way that it shows that the acknowledger is to accept the other not only as his son, but as the legitimate son.

ii.

Age of the Acknowledger- The age of the parties must be such that it may be possible that they are father and son. According to Bailee, the acknowledger must be at least twelve and a half yars older than the person acknowledged.

iii.

Child of Other- The child so acknowledged must not be known to be the child of another.

iv.

Person acknowledged should confirm acknowledgement- The child, if adult, must confirm, in acknowledgement. It is important for child to verify to acknowledgement because if the child does not verify, an impediment is created and the childs descent is not established

v.

Legal marriage possible between Parents of the child Acknowledged- The acknowledger and the mother of the child must have been lawfully joined in a marriage at the time when the child was begotten. Child must not be the fruit of an adulterous intercourse. Similarly, if it is definitely proved that no marriage took place between yhe parties, the issue will be illegitimate and acknowledgement will be ineffective.

vi.

Competency of the Acknowledger- The acknowledger must be competent to make a contract, that is, he should be adult and sane.

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vii.

Offspring of Zina- An offspring of zina is one who is born either without marriage, or of a mother who was marries wife of another, or of a void marriage.

Bailee says that when a man has committed Zina with a women, and she is delivered of a son whom he claims, the descent of the son from the man is not established, and he cannot be acknowledged. Therefore, the acknowledgement must be definite and the child must be acknowledged to be the child of his body. AN ACKNOWLEDGEMENT ONCE MADE CANNOT BE REVOKED.28

Rule of Legitimation by Acknowledgement

The rule of legitimation depends on the assumption of legitimacy and its establishment by avoidance of the hypothesis of unlawful relation between the parents. This rule is based on contractual form of marriage under Muslim Law, no ceremony is prescribed for a valid marriage. It is also not necessary that the marriage should be published. Muslim law does not recognize western concept of legitimation i.e., conception of a child outside wedlock.

Ashrufood Dowla Ahmed Hossein v. Hyder Hossein29 It was said that acknowledgement of paternity is a recognition not simply of sonship, but of legitimacy as a son.

Effect of Acknowledgement

28 29

Asharfod Dowlah v. Hyder Hussain (1866) MIA 94 ILR (1888) All. 289

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Acknowledgement of paternity raises in a twofold presumption One in favour of son-claimant In favour of wife client

In the case of a son, it produces all the legal effect of a natural paternity and vest in child the right of inheriting from the acknowledger. In the case of a wife i.e., the mother of the acknowledged son, it has the effect of giving her the status of legal wife and hence the right of inheritance.

ADOPTION NOT RECOGNIZED IN MUSLIM LAW

According to Manu adoption is the taking of the son, a substitute for the failure of male issue. Thus it is the transplantation of the son from the family in which he is born, into another family by gift made by his natural parents to the adopting parents. Islam does not recognize adoption. In 1972, The Adoption of Child Bill was introduced in the Parliament in order to make an uniform law of adoption applicable to all citizens of India regardless of their religion. However, this bill was withdrawn by the Government in 1978 and could not be

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