Parentage | Family Law - CLAT PG PDF Download

Illegitimacy

• Illegitimacy  in earlier times imposed severe disabilities on bastards and carried a greater stigma compared to today.
• Societal attitudes have shifted towards greater tolerance and permissiveness regarding individual shortcomings.
•  Islamic law  strictly enforces sexual morality, deeming any sexual relationship a crime unless it occurs between husband and wife (or, historically, master and slave-concubine).
• Legitimacy is heavily emphasized under Islamic principles.

Legitimation 

•  Legitimation  and  legitimacy  are distinct concepts. Legitimacy refers to the status resulting from certain facts, while legitimation involves creating a status that did not previously exist.
• Under  Mohammadan law  , there is no concept of legitimation.
•  Legitimation by subsequent marriage  is widely accepted in common law. The  Legitimacy Act 1926  introduced this principle into English law, allowing illegitimate children to be considered legitimate if their parents marry after the child's birth.
• The  Legitimacy Act 1959  expanded this concept, allowing legitimation even if one or both parents were married to someone else at the time of the child's birth, provided the father was domiciled in England at the time of marriage.
• A child born within a valid marriage is treated as legitimate if either parent honestly believed the marriage was valid at the time of conception or marriage.

Muslim Law of Legitimacy 

•  Islamic law  enforces strict sexual morality, viewing any sexual relationship outside of marriage as a crime. In contrast, English law only criminalizes such relationships under specific circumstances.
• Under  Mohammedan Law  , a child is considered legitimate if born to a man and his wife legally married at the time of the child's birth.
• If direct proof of marriage is lacking, an acknowledgment of paternity can serve as presumptive proof of marriage.
• The validity of a marriage determines the legitimacy or paternity of children in Islamic Law.
•  Matrimonial authority  (Firash) belongs to the husband in Islamic Law.
• Commission of illicit relations by either spouse does not invalidate the marriage.
• Illegitimate children in Muslim Law are considered "filius nullius" and have no legal relationship with either parent.
• Shia Muslims do not recognize any relationship between an illegitimate child and its parents, while Hanafis allow certain relationships for specific purposes.
• Illegitimate children have no inheritance rights in the property of their putative father under any School of Muslim Law.
• Guardianship of illegitimate children is vested in the mother in modern India, despite traditional Muslim Law not providing for such guardianship.
• Muslim Law does not recognize the western doctrine of legitimation, and conception must occur after marriage for a child to be considered legitimate.
• Parentage in Muslim Law is established either by birth within a regular or irregular (but not void) marriage or by acknowledgment.
• Adoption is not recognized in Islam.
• The doctrine of acknowledgment of paternity differs from legitimation, as it assumes the acknowledged child is the offspring of the acknowledger by blood and a lawful union with the mother.

Presumptions of Legitimacy and Period of Gestation 

• Presumptions of legitimacy in Muslim law include:
• A child born within six months of marriage is illegitimate unless acknowledged by the father.
• A child born after six months of marriage is legitimate unless disclaimed by the father.
• A child born after the termination of marriage is legitimate if born within specific lunar months, varying by different schools of thought (e.g., Shia, Hanafi, Maliki, Shafi).
• These periods establish the earliest viable age and gestation, with the shortest accepted period of gestation being six months.
• Section 112 of the Indian Evidence Act provides a conclusive presumption of legitimacy, stating that a child born during a valid marriage or within 280 days after its dissolution, with the mother remaining unmarried, is presumed legitimate unless there was no access during the time of conception.
• The minimum and maximum limits of gestation set by Muslim law have faced criticism for not aligning with modern scientific understanding of gestation and pregnancy.
• The minimum period of six months is not explicitly fixed by the Koran, and the shortest accepted period of gestation in English courts is 174 days.
• The criticism primarily targets the maximum limit, which is significantly divergent from contemporary scientific knowledge.
• The application of Section 112 of the Evidence Act establishes a conclusive presumption of legitimacy, ensuring the child’s status is legally recognized based on the outlined criteria.

Acknowledgment of Paternity 

• Paternity, derived from the Latin word  "paternitas,"  refers to the legal and biological identification of a child's father.
• According to  Black's Law Dictionary,  paternity signifies the legal and biological relationship between a father and his child.

 Legal Fatherhood 

• When a child is born, they bring joy and blessings to their parents. Generally, if the mother was married at the time of the child's birth or during the ten months preceding the birth, her husband is legally recognized as the father.
• If the parents are not married, paternity must be legally established to identify the father and secure his rights. Until paternity is established, the child lacks a legal father and legal identity.

 Legitimation and Muslim Law 

• Establishing paternity is not the same as legitimation. In Muslim law, legitimacy is not recognized.
• Acknowledgment involves legally accepting someone, which creates legal rights. When a man legally recognizes a child who is not biologically his, it is called  Acknowledgment of Paternity  under Mohammedan Law.

 Differentiation from Adoption 

• Under Hindu Law, this concept is similar to  Adoption. 
• Acknowledgment of Paternity applies under Mohammedan Law when there is uncertainty about paternity, the child is not the result of  Zina  (adultery, fornication, incest, or illicit relations), and the circumstances of the child's birth suggest he could be the legitimate child of the father.

Establishment of Paternity under Muslim Law 

Paternity under Muslim Law involves the father's declaration of a child as his legitimate offspring, rather than legitimizing an illegitimate child. Key elements include:

 Key Elements of Paternity Acknowledgment 

•  Valid Marriage:  A valid marriage is essential for the acknowledgment of paternity under Mohammedan Law.
•  Proofs:  Certain proofs are necessary for establishing paternity.
•  Express or Implied Acknowledgment:  A man can acknowledge another as his lawful child either explicitly or implicitly.

 Methods of Establishing Paternity 

•  Marriage:  Paternity can be established through a valid marriage.
•  Acknowledgment:  A father can acknowledge a child as his own.
•  Evidence:  Evidence may be required to support the claim of paternity.

Conditions for Valid Acknowledgement 

•  Doubtful Paternity:  The child's paternity must be uncertain, meaning it should not be definitively proven or disproven whether the child is illegitimate. Acknowledgement applies only in cases of uncertainty regarding legitimacy. If a child is known to be illegitimate, they cannot be acknowledged as legitimate. Acknowledgement assumes a lawful union between the parents and the acknowledged child.
•  Legitimate Status:  The acknowledger must explicitly acknowledge the child as their legitimate child, not just as their child. The intention to confer the status of legitimacy must be clear. When acknowledging a child, it is essential to declare them as a legitimate child explicitly.
•  Age Difference:  The ages of the acknowledger and the acknowledged child should be such that they appear to be father and child. The acknowledger should be at least twelve and a half years older than the person acknowledged.
•  Prohibition of Adultery or Zina:  The acknowledged child must not be the offspring of adultery or any form of zina (illegal sexual intercourse). If the child is a result of zina, they cannot be acknowledged as a legitimate child and have no legal rights or societal acceptance.
•  Establishment of Paternity:  The paternity of the acknowledged person must not be established by anyone else. If paternity is certain and established by another person, the acknowledgement is not legal. For example, the husband of the child's mother cannot acknowledge paternity in such cases.
•  Repudiation Rights:  The acknowledgement must not be repudiated by the acknowledged person. Under Muslim law, a person with the capacity to understand the transaction has the right to repudiate the acknowledgement. Confirmation by the acknowledged person is not necessary for the validity of paternity acknowledgement. Once made, an acknowledgement of paternity cannot be revoked.

Rights Arising from Acknowledgment of Paternity 

• When a valid acknowledgment of paternity is made, the following rights and consequences arise:

 Presumption of Valid Marriage 

• Acknowledgment of paternity raises a  presumption of valid marriage  between the acknowledger and the mother of the acknowledged child.

 Mutual Inheritance Rights 

• The acknowledger and the acknowledged child have  mutual rights of inheritance  .
• Mutual rights of inheritance also exist between the acknowledger and the mother of the acknowledged child.

Benefits of Establishing Paternity 

 For the Child: 

• Legal record of the identity of both parents.
• Father's name on the birth certificate.
• Information on family medical history for potential medical treatment.
• Emotional benefits of knowing both parents.
• Financial support from both parents, including child support, Social Security benefits, veterans benefits, military allowances, and inheritance.
• Health or life insurance from either parent, if available.

 For the Mother: 

• Assistance in sharing parental responsibilities.
• Access to medical history information for the child's medical treatment.
• Enhanced financial security for the child.
• Access to health insurance, if available.

 For the Father: 

• Legal establishment of parental rights.
• Father's name on the birth certificate.
• Right to seek court-ordered custody or visitation.
• Right to be informed and have a say in adoption proceedings, if applicable.

Illegitimacy Cases

Pavitri v Katheesumm Case 

• The case involved the maintenance of an illegitimate daughter born to a Mohammedan father and a Hindu mother.
• The court ruled that under Mohammedan law, the putative father is not obligated to provide maintenance for an illegitimate child.
• Shia law does not require either parent to maintain an illegitimate child, while Hanafi law only mandates maintenance from the mother.

 Nafees Ara v Asif Sadat AlKhan Case 

• In this case, a petition was filed under Section 488 of the Criminal Procedure Code of 1898, seeking maintenance for an illegitimate child.
• The court determined that Muslim law does not explicitly grant or prohibit maintenance for an illegitimate child against the father. However, this does not imply that civil or criminal courts lack the authority to award maintenance.

 Societal Perspective 

• The societal view of illegitimacy differs from legal definitions. While the law may label a child as illegitimate, society often shares the same perception.
• The child, born as a result of  zina  (illicit intercourse), is innocent and did not contribute to their circumstances. The stigma of illegitimacy is imposed upon them, despite their innocence.
• The biological father should have the right to acknowledge his child, regardless of the circumstances of the child's birth.

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