Acknowledgement of paternity under Muslim Law (Iqrar-e-nasab) Vaishali Bahubalendra BASICS OF LAW Mon, Aug 24, 2020, at ,07:59 PM Acknowledgement of paternity under Muslim Law (Iqrar-e-nasab) Firstly let us describe the two terms that are 'acknowledgement' and 'paternity'. Acknowledgement means to accept or admit the existence of a thing or a fact and paternity mean the state of being someone father. So put together acknowledgement of paternity means accepting the fact of being someone's father. Acknowledge of paternity is required so as to prove the legitimacy of a child. The acknowledgement is just in nature of a declaration by father that the child is his offspring. This doctrine of acknowledgement draws its genesis from the Quranic provision:- "call them after their fathers"[1]. Under the Muslim law a child to be legitimate:- must be born during lawful wedlock and must be conceived during the lawful wedlock A child born after six months of marriage is legitimate, unless declaimed by his father and a child born within six months marriage is illegitimate unless the father acknowledges it. So acknowledgement is a tool for keeping the family intact and not allowing the child to live without the love, care and protection of the father. So for an acknowledge being made doubtfulness of paternity of the child is a prima facie requisite. When the paternity of the child cannot be established by marriage between the parents at the time of conception or birth, such void of marriage and legitimate descent is filled through acknowledgement. So a child to be legitimate must be begotten out of lawful wedlock. The law with regard to the Mohammedans requires or necessitates the existence of a valid marriage between the male person (begetter) and the carrier (mother) at the time of conception. This above-contemplated requisite has been highlighted in case of Habibur Rahman Chowdhari v Altaf Ali Chowdhari[2], to state expressly:- "a son to be legitimate must be the offspring of a man and his wife or a man and his slave, any other offspring is the offspring of the 'gina', that is, illicit connection, and cannot be legitimate." Therefore under the Muslim law legitimacy of a child can be established through direct or indirect marriage between the father and the mother of the child. In cases wherein lawful marriage can be proved in tot, the presumption of a lawful marriage saves the day. The cases vide which a lawful marriage may be presumed, are envisaged as under:- Prolonged cohabitation of a man and a woman (excluding a prostitute); Acknowledgement by a man of a woman as his wife. Acknowledgement of being the father of the child. So acknowledgement, though an effective remedy for those children, whose legitimacy is doubtful, but for the use of this remedy proof of valid wedlock is a requisite. A child begotten between prostitute or concubine and man is prima facie an illegitimate and so cannot be given the tag of legitimacy even by the use of this remedy i.e. acknowledgement of paternity. This narrowness in the application in the doctrine has a twinning effect, firstly giving legitimacy to the children in cases where their legitimacy is in issue in a persisting marriage and secondly, on the other hand, prohibits men and women to have an adulterous relationship outside the wedlock as acknowledging does not remedy those children who are ipso facto illegitimate. The case of Sadiq Husain v. Hashim Ali[3] gives a thrust to the above-mentioned statements and in addendum contemplates that, an acknowledgement cannot legitimate a child who is proved to be illegitimate. How legitimacy is presumed under Muslim Law? The Islamic law sets out criteria, some general whereas some differences in relation to some of its schools, in relation to the presumption of legitimacy. These are mentioned as under:- Unless the father acknowledges, a child born with six months of the marriage is illegitimate. Unless the purported father declaims the child [through lian (i.e.dissolution of marriage, by the allegation of adultery to wife)], a child born after six months is presumed to be legitimate. Cases wherein a child born after the dissolution of marriage is legitimate if:- Born within 10 lunar[4] months, under the Shia law. Born within 2 lunar years, under the Hanafi law. Born within 4 lunar years under Shafei and Maliki law. These rules though had primacy before, but have been done away with as the same is rarely or not all applicable in the Indian context. It also needs to be emphasised that the principle of acknowledgement of paternity is not only a mode of evidence but is also a part of the substantive Shariat law. Conditions requisite for a valid acknowledgement are envisaged below:- Intention to confer legitimacy The acknowledge must not be of sonship alone but must be of legitimate sonship. Such acknowledgement must be well-intended and not have been casually made with no intention to confer legitimacy. Acknowledger's Age The parties thereto must be of such age, so as to be considered as father and son, i.e. the acknowledger must be twelve and a half years older than the child acknowledged. The legitimacy of the child must be in question (the child must not be known to be the child of someone else) The acknowledged by the acknowledger should not be known to be the child of another. Confirmation must be made by the person so acknowledged. The acknowledger i.e. the must verify the acknowledgement or at least not repudiate it and believe himself/ herself to be the child of the acknowledger. Legal Marriage must be possible between the parents of the acknowledged child There must not be any kind of prohibited relationship between the parents of the child acknowledged, i.e. either by consanguinity, affinity etc.. The marriage should be possible when the child was begotten. The acknowledger must be competent The acknowledger must bear capacity for entering into a valid contract, that is he should be adult and sane. Should not be Zina's ( incest) Offspring The child acknowledged should be an outcome of lawful wedlock, should not be born without marriage or born out of a void marriage, born out of adultery etc. Now coming to the statutory law in the Indian regime with regard to the presumption of legitimacy, which has been inscribed under section 112 of the Indian Evidence Act,1872 (IEA for brevity). This section raises a legal presumption for the legitimacy of a child, under two circumstances:- When the child is born during the continuance of valid marriage; With 280 days of the dissolution of marriage, provided the mother remains unmarried. The fact that the child is born between these two periods as contemplated above, is considered to be conclusive proof of legitimacy in letters of section 112 of the Indian Evidence Act, 1872. But the conclusiveness of such legitimacy can be rebutted if the parties show no access. Both under the Muslim law and Indian Evidence Act there is a window whereby the presumption of legitimacy of a child can be denied. In the former case, it is through lian(disclaim) and in the latter by proof of non-access. Whether the presumption under IEA supersedes the presumption under Muslim law. To this dilemma, the opinions of High courts have differed, but in the majority of opinion it has been contended that presumption under IEA eclipses the presumption under the Muslim Law and applies to Muslim as well.[5] But a flaw that is very well-identified in the requisites for the application of section 112 for IEA, that is there must be a valid marriage and no such presumption of legitimacy of the child can be raised under section 112 of IEA if the marriage is not valid. This particular proposition had been highlighted in the case of Abdul Rahemankutty v Aisha Beevi[6]. So if a child is begotten of a marriage which is invalid the remedy of presumption under 112 of IEA cannot be invoked. But in such a contingency, panacea can be obtained vide the presumption of legitimacy under Muslim law. So what can be inferred is that, if a given situation has all requisites which mandate section 112 IEA to invoked then the case shall continue as usual but if in cases, where marriage is not valid, the presumption of legitimacy under Muslim law shall prevail. But still, it cannot be stated in general as to presumption under which law (IEA S-112 or Muslim law) will prevail over the other. [1] Muhammad Allahabad v. Muhammad Ismail Khan, I.L.R 10 All, 289 (327) [2] 1921 48 IA 44 [3] (1916) 43 IA 212 [4] note:- a lunar calendar is calendar based on monthly cycles of moon phases. As each lunation is approximately twenty nine and half days, so a period of 12 such lunation that is a year is only 354 days. [5] Sibt Muhammed v. Muhammad (1926) 48 All 625 [6] (1960) A. Ker 101