ICFAI UNIVERSITY

DEHRADUN

FAMILY LAW WEEKLY ASSIGNMENT-III

TOPIC- MUSLIM LAW(PARENTAGE AMONG MOHAMMEDAN)

ENROLLMENT ID- 18FLICDDN02175

SUBMITTED TO SUBMITTED BY

FACULTY OF FAMILY LAW TWINKLE RAJPAL

DR. ASHISH KUMAR SINGHAL BALLB(Hons.)-II YEAR

SECTION-C

BATCH 2018-2023
 PARENTAGE AMONG MOHAMMEDAN

Parentage:

Parentage is the legal relation between a child and the parents. The mother and father of a child
called the parents of the child. These legal relationships are associated with certain rights and
duties, such as, mutual rights of inheritance, maintenance and guardianship.

Maternity, How Established:

The maternity, a relation of child and his mother is established under Sunni Law, in the woman
who gives birth to the child irrespective of
whether the birth was the result of a wedlock or Zina (adultery) and such child is entitled to
inherit the mother's properties. On the other
hand under Shia Law, mere birth is not sufficient to establish maternity, the child must be the
result of a lawful marriage and such child cannot inherit the mother's property.

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 insists 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

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.

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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

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 within 280 days after the dissolution of marriage,the mother
remaining unmarried.

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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:

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 legitimate sonship. Mere casual
acknowledgement, not intended to confer the status of legitimacy, will not be a legal
acknowledgement.

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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)