Acknowledgement

The project has been a great source of knowledge for me.

In this regard I wish to extend my gratitude to my Prof.
Surendra Mehra.

I would like to thank my classmates who helped me

throughout this process.

At last ,But certainly not the least ,I would like to thank my

outsanding friend who helped me to organise the collected
information in a precise manner and kept me alert about
the deadline of the submission of project.

Vishwas Jorwal
B.A.LL.B(Hons.)
6th sem.
Roll No. 52
 Table of content

1. INTRODUCTION

2. WHAT ARE PRESUMPTIONS OF LEGITIMACY OF A

CHILD UNDER ISLAMIC LAW

3. THE PRESENT LAW OF LEGITIMACY

4. ACKNOWLEDGEMENT OF PATERNITY

5. PRINCIPLE OF THE DOCTRINE OF LEGITIMACY BY

ACKNOWLEDGEMENT

6. LEGAL EFFECTS OF ACKNOWLEDGEMENT

7. CONDITIONS OF A VALID ACKNOWLEDGEMENT OF

LEGITIMACY

8. LEGITIMACY UNDER S. 112 OF THE INDIAN

EVIDENCE ACT

9. VALID MARRIAGE: PRESUMPTION

10. Conclusion

11. BIBLIOGRAPHY
 Introduction

Legitimacy of a Child under Muslim Law in

India

Legitimacy is a status which directly results from the fact of paternity of a

child. When the paternity of a child is established, its legitimacy is also
established. Basis of legitimacy is paternity which depends upon the
existence of a marriage. Therefore, under Muslim law the legitimacy of a
child is established by a direct or indirect proof of marriage between the
father and mother of the child. In cases where no direct proof of
marriage is available, the existence of a lawful marriage may be
presumed by:
(i) A prolonged cohabitation of a man and a woman (not
prostitute), or

(ii) (ii) By the fact that a man acknowledges a woman as his

wife, or

(iii) (iii) By the fact that man acknowledges himself as father

of a child.

(iv) Thus, we find that the basis of legitimacy under Muslim

law is the existence of marriage and the marriage itself
may be presumed when a man acknowledges paternity to
a child bom to a woman (wife). It may be said that the
marriage between a man and woman and the legitimacy
of their off-springs are corelated.
What are Presumptions of Legitimacy of a Child under
Islamic Law

1. A child born within six months of the marriage is

illegitimate unless the father acknowledges it.

2. A child born after six months of the marriage is

legitimate unless the father disclaims it by accusing his
wife for adultery.

3. A child born after the dissolution of the marriage is

legitimate if born:

(i) Within 10 months of the dissolution (Shia law);

(ii) Within 2 years of the dissolution (Hanafi law);

(iii) Within 4 years of the dissolution(Shafie & Maliki

law).

The above mentioned rules of presumption of legitimacy, at least the

different periods given in rules (ii) and (iii) may not be believable, but two
reasons may be attributed to such rues. Firstly, in the absence of any
advanced medical science, the jurists of those days had no perfect
knowledge of the normal period of delivery of a child after its conception.

The Present Law of Legitimacy:

A uniform law relating to the conclusive proof of legitimacy of a person,

irrespective of his religion, has been laid down in Section 112 of the
Indian Evidence Act, 1872. This section provides that following facts
shall be the conclusive proof of the legitimacy of a person:

(1) That the person was born during the continuance of a valid marriage
between his mother and any man, or
(2) That the person born within two hundred and eighty days after the
dissolution of the said marriage, the mother remaining unmarried, 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.

Acknowledgement of Paternity under Muslim Law

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)

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.

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.

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).

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

acknowledgers 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 Ahmeds 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 could remarry,
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 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.

Presumption of Legitimacy under S. 112 of the Indian

Evidence Act:

Section 112 of the Indian Evidence Act reads as follows:

The fact that any person was born:

(i) During the continuance of a valid marriage between his mother and
any man; or

(ii) 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 be shown that the parties to the marriage had no access
to each other at any time when he could have been begotten.

The presumption as to paternity in this section only arises in connection

with the offspring of a married couple. No matter how soon the birth
occurs after the marriage, the presumption of legitimacy is conclusive.
However, if it is shown that the husband of the mother did not have
access to her; the presumption of section 112 will not apply.

The presumption contemplated by section 112 of the Indian Evidence

Act is a conclusive presumption of law, which can be displaced only by
proof of non-access between the parties to the marriage at a time when,
according to the ordinary course of nature, the husband could have been
the father of the child.

The principle of this section can be rebutted when the mother of the child
is not a wife, but a mistress.

Section 112 deals with the presumption of legitimacy of a child. The

section is based on maxim pater rest quern nuptioe (he is the father
whom the marriage indicates). It provides that a child was born during
continuance of valid marriage between the mother and any man or within
280 days after the dissolution of valid marriage and the mother
remaining unmarried, it shall be the conclusive proof that the child is a
legitimate child of that man unless and until it is shown that the parties to
the marriage has no access to each other at the time when the child
would have been begotten. The sprit behind Section 112 is that once
valid marriage is proved there is strong presumption about the legitimacy
of children born during wedlock.

When the above requirements are satisfied the presumption of

legitimacy is a conclusive presumption of law. Child born during wedlock
is sufficient proof of legitimacy. The presumption can only be displaced
by a strong preponderance of evidence, and not by a mere balance of
probabilities. Section 112 is based on presumption of public morality and
public policy. It is a presumption founded upon public policy which
requires that every child born during wedlock shall be deemed to be
legitimate unless the contrary is proved. The effect of this section is that
a child born as the result of sexual intercourse between husband and
wife is conclusively presumed to be their child.

A marriage presumed from living together for a long period is valid

marriage for the purpose of legitimacy under this section. Under section
112 it is always for the father or person who wants to challenge the
legitimacy of the child that there was no opportunity for intercourse
between the father and the mother of the child. On the other hand,
strong presumption is in favour of the legitimacy to the child born during
wedlock.

Access and non-access:

The presumption of legitimacy of child depends upon effective access

between the mother and the father. The parties to the marriage have had
access to each other when the child was conceived. But, access and
non-access cannot have existence and non-existence of opportunity for
marital intercourse. Non-access can be proved by evidence direct or
circumstantial though the proof of non-access must be clear and
satisfactory as the presumption of legitimacy is highly favoured by law.
From the date of marriage to the date when the wife left to go to her
parents, there could not be access because of the wifes physical
ailments and a child born after nine months of marriage was held to be
illegitimate. But, the illness of the husband is not sufficient to displace
the presumption of access unless the illness is totally disabling. If
husband can prove that there was no actual cohabitation, non-access
is established. Thus the burden of proving illegitimacy is on the husband
who has to establish that he had no opportunity to access with the wife
when the child was begotten.

Valid marriage: presumption:

Father and mother of the appellant had been cohabiting for number of
years and were treated by others as husband and wife. Six children
including the appellant were born out of their relationship. There was no
proof that her father and mother had subsisting earlier marriage. It could
be said that there was valid marriage between husband and wife. Where
evidence of marriage is insufficient, the court is not barred from drawing
presumption of marriage for long living together under sections 112 and
114 of the Act. Where parties lived together for more than twelve years,
three children were also born, there was presumption of valid marriage
between the two, the mere fact that no evidence of saptapadi or
sampradan could be produced now was held of no consequence.

Gestation:

The period of gestation mentioned is this section is 280 days. It does not
mention any maximum period of gestation. If a child born after 280 days
and after dissolution of marriage, the effect of the section being merely
that no presumption in favour of legitimacy is raised, and the question
must be decided simply upon the evidence for and against legitimacy. A
child born within 280 days of the husbands death is a legitimate child.

Child born 305 or 330 days after last opportunity for coitus is the child of
the father. The period of gestation of 313 days cannot be said to be
unreasonable. The usual period of gestation from the first date of the
coitus is between 265 and 270 days and delivery is expected is about
280 days from the first day of the menstruation period prior to a woman
conceiving a child. It is true that sometimes the delivery can take place a
few days before or after the said period of 280 days. Normal child born
after normal delivery 171 days after first coitus between wife and
husband. Normally, it should be held that the child was not of the
husband.

DNA Test:

The DNA is the genetic material in the cells of human body or any other
living organism. Each cell receives half of DNA from biological mother
and other half from biological father. It determines human character,
behaviour and body characteristics. But non-access should have been
proved.

The Supreme Court has expressed most reluctant attitude regarding

application of DNA technology in resolving paternity determination. In
Goutam Kundu v The State of West Bengal the prayer for establishing
legitimacy and maintenance by a child through blood test was not
accepted. Their Lordships held that there must be a strong prima facie
case that the husband must establish non-access in order to dispel the
presumption arising under section 112 of the Evidence Act. This
presumption can be displaced by a strong preponderance of evidence
and not by a mere balance of probabilities.

The prayer for blood test was not accepted by the court. The court held
that it cannot compel the father to submit himself DNA Test. Same view
was held in Kamti Devi case by the Supreme Court regarding
admissibility of DNA evidence in resolving paternity dispute. The parties
to the marriage had no access to each other and to test blood group
violates right under article 21 of the Constitution. Order directing DNA
Test of child without hearing parties would be violative of natural justice.
Where there is evidence to show that the husband had no access to wife
at relevant time when child could have been conceived adverse
inference can be drawn against the husband from his proved conduct of
not getting DNA Test conducted.

The DNA Test for proving paternity of the child can be ordered in
exceptional and deserving cases only if it is in the interest of child. DNA
Test cannot be ordered as a matter of course in every case. It is
permissible in exception case. The use of DNA test can be resorted to
only if such test is eminently needed. Order for DNA Test by the
Womens Commission is proper.
 Conclusion

Although the presumption of legitimacy is conclusive presumption it is

equally based upon certain facts which must be present in favour of
legitimacy.

To rebut the legitimacy it must be supported by direct or circumstantial

evidence. Because, it has been known to all that maternity is fact and
paternity is a surmise. It is certain that a woman gives birth a child but at
the same time it is impossible to say who is the father. That is why, it is
said that the maternity admits of positive proof, but paternity is a matter
of inference. Strictly speaking there are two presumptions under this
section, one rebuttable and the other irrebuttable. First: there is
presumption to start with in favour of legitimacy of the child born during
wed lock; in other words there is presumption that the husband had
intercourse with the wife at the time the child must have been
conceived.

But this is rebuttable presumption where the evidence may be adduced

to show that there was in fact no access, that is, no sexual intercourse.
Whether the presumption has been rebutted by proper evidence that
such access did not take place as by the law of nature is necessary for a
man to be in fact the father of the child, is essentially a question of fact.
The second presumption is, if the sexual intercourse is proved the law
will not permit an enquiry whether the husband or some other man was
more likely to be the father of the child, the presumption to be drawn
here becomes irrebuttable one. It is conclusive presumption of paternity
of a child born during subsistence of valid marriage. Proof of non-access
at time when child could have been begotten is only outlet to escape
vigour of conclusive presumption.
 Bibliography

Muslim law by aqil ahmed

www.indiakanoon.com/muslimlaw/ultravires
www.advocatekhoj.com
Law teacher.net.(2015)
w/yml.org.(2015)
lexis nexus,(2014)