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ACKNOWLEDGEMENT OF PATERNITY, Presumption of legitimacy, The rules of Muhammadan Law as regards presumption of legitimacy may briefly be stated as follows, 1) A child born within less than six months after marriage is illegitimate. (This is in direct contrast to the, rule contained in the Indian Evidence Act, under which a child born even a day after marriage is, legitimate.), 2) A child born after six months from the date of marriage is presumed to be legitimate,, - unless the, putative father disclaims the child., 3) A child born within two years after the termination of a marriage is presumed to be legitimate,-unless, disclaimed by the father. (Under the Shia law, the corresponding period is ten months.), What is paternity?, Paternity is the legal relation between the father and his child order to establish the paternity of a child, the child, must be shown to the offspring.either of a valid or of an irregular marriage between parents. If there is no direct, proof of such a marriage, it may presumed, (1) from the continued cohabitation, combined with absence of, any of the impediments to a marriage; or (2) from acknowledgement of legitimacy in favour of the issue born of, marriage., What is 'acknowledgement of paternity?, 57, 1

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Muslim Law (K-3001)-, 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 1.A. 8), Paternity of a child is established if the child is born during continuance of a valid marriage or within 280 days, of its dissolution, the mother remaining unmarried., Maternity of a child is established in the woman who gives birth to the child; it is immaterial whether the child, is an offspring of a valid or irregular marriage,, - or even of a fornication or adultery., 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 ámong 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. Acknowledgement 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., 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, 58, 2

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Muslim Law (K-3001), 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 acknowledger's 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, then, the presumption of legitimacy cannot be raised by acknowledgement, however strong. (Rashid Ahmed, v. Anisa Khatun, (1932) 34 Bom L.R. 475 P.C. 59 IA. 21), In Rashid Ahmed's case (above), A, a Muslim, divorced his wife B, by three pronouncements of talak, but, afterwards, continued to co-habit 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 B could remarry, B should have been married to another in the interval and, divorced by that another. As there was no proof of such marriage with another and a divorce by him, a, presumption of remarriage between A and B 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 Allahadad v., Muhammad Ismail (1888-10- All 289) are relevant. In that case, the Court observed, 59, 3

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Muslim Law (K-3001), "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.", Effect of acknowledgement, When all the above Conditions are satisfied, the result will be that the legitimacy of the acknowlecigee (who, may be a male or female) and the marriage of his (or her) mother with the acknowledger will be established,, unless the marriage is disproved (Syed Habibur v. Syed Altaf, 83 Born. L.R. 636, PC). The acknowledgement, may thus be taken advantage of the child or by the child's mother., Whether revocable -, It is well-settled that an acknowledgement of legitimacy, once made, cannot be revoked later on. (Ashrufood v., Hyder Hossein, 1866 11 M.I.A.94), Whether the acknowledged child can repudiate, According to Mulla, in order that there should be a valid acknowledgement, it should not have been repudiated, by the person acknowledged., If the person acknowledged has attained an age when he can understand the transaction, he can repudiate the, acknowledgement., Adoption not recognized In Muslim law, There is nothing like adoption in Muhammadan law. Even a Hindu convert to Islam cannot adopt. Thus, B, a, Hindu of Bombay, gave up his faith of Hinduism and embraced Islam. As he had no son, he adopted a son A., 60, 4

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Muslim Law (K-3001), Thereafter, B died. A, as the adopted son of B, claimed full right of inheritance. Here, A cannot succeed,, because the Muslim law does not recognise the doctrine of adoption at all., 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 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.