Legitimacy and Parentage under Muslim Law: Presumptions

In India, our judicial system still allows the practice of personal laws. This means, that every religious community or group can practice and follow the rules and regulations of their own laws, up to a certain point. One such prevalent law in India is the Muslim law or Islamic law. Let us look into Legitimacy and Parentage under Muslim Law.

Legitimacy and Parentage under Muslim Law

How is Paternity Established?

Paternity is the relationship between a child and his paternal figure, i.e. his father. Parentage under Muslim law is not a matter of fact. The only way to establish paternity is by marriage to the mother of the child. So as per Islamic law, maternity is by fact but paternity can only be by marriage.

Hence, if there is no marriage between the mother and the father of the child, then such a child is illegitimate. And as per Sunni Law, such child has no paternity. And according to Shia Law, such a child has neither paternity nor maternity. By conclusion parentage under Muslim law is only available to a legitimate child.

Parentage under Muslim Law

Legitimacy under Muslim Law

The legitimacy and parentage under Muslim law are closely related to marriage. So a child will be considered legitimate only if he is born in lawful wedlock.

This means that the father (begetter) and the mother (bearer) of the child should have been in a valid lawful marriage at the time of conception. Then the child will be a legitimate child with established paternity and maternity.

Hence under Muslim law, only direct or indirect marriage between the begetter and the bearer of a child can establish the legitimacy of children. If there is not a lawful and direct marriage between the said people, then an indirect marriage can be established if,

There is cohabitation of the father and the mother
The father acknowledges the mother as his wife
The father acknowledges the child as his own. So if the marriage cannot be proven between the father and mother, or there is a doubt as to the paternity of the child, the father can choose to acknowledge the child as his own. This is true for both sins and daughters. It is known as ikrar-e-nasab. Also, such acknowledgement need not be expressed, it can also be implied by conduct.

Presumptions about Legitimacy

The following are certain presumptions about legitimacy and parentage under Muslim law.

A child born before six months of a marriage is considered illegitimate. However, the father can acknowledge such a child to change the legitimacy status.
A child born after six months is legitimate. However, the putative father can disclaim the child by the use of lian.
A child born after the dissolution of marriage is legitimate if he is born within 10 months as per Shia law or 2 years as per Hanafi Law

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Indian Evidence Act, 1872: Laws of Legitimacy

In India, the legitimacy of any child no matter his religion is decided by the Indian Evidence Act, 1872. This act states that a child will be legitimate if,

is born in the continuance of a valid marriage between the mother of the child and any other man (need not be the father of the child)
Is born after 280 days of the dissolution of the marriage as long as the mother did not remarry in such a time.

Solved Question on Parentage under Muslim Law

Q: What are the differences between the present law prevailing in India and Muslim law when it comes to the legitimacy of a child?

Ans: In India, the legitimacy of a child is determined by the Indian Evidence Act, 1872 for all children (both non-Muslim and Muslim). And the two major differences are

As Per Muslim law, the child must be conceived in a valid marriage. As per the Evidence Act, the child is legitimate as long as he is born in a legal marriage.
A child born for up to 280 days is legitimate according to the evidence act. This differs in Muslim law.

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