The concept of legitimacy of children is the direct outcome of the concept of marriage. In all societies where marriage came to be established as a social institution, it was laid down that the children born within the lawful wedlock though some societies insisted that even the concept should take place within the lawful wedlock were legitimate children of the man and his wife.
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As a corollary to this, it was laid down that the children born outside the lawful wedlock were illegitimate. This continues to be the position in most systems of law. In our contemporary society, in some systems of law, the distinction between the legitimate and illegitimate children is being blurred by conferring all the rights and privileges of legitimacy on illegitimate children,’ yet, so long as the institution of marriage survives, some distinction between the two is bound to remain.
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In Muslim law, on the one hand, the rules relating to legitimacy are fairly liberal, and on the other, illegitimacy is condemned, and the woman guilty of having illicit relationship is punishable for zina.
The Muslim law-givers condemned all sex relationship outside wedlock as illicit and provided for its punishment. In the words of Coulson: “Islamic law embodies the principle of strict enforcement of sexual morality in the severe punishment it prescribes for the offence of zina, or formication.
Under English law a sexual relationship outside marriage is not a legal offence unless it is aggravated by circumstances such as lack of consent, the young age of the girl, the blood relationship of the person concerned, or unnatural behaviour which will amount to criminal offence of rape, unlawful carnal knowledge, incest, bestiality, or sodomy [which is no longer an offence], Islamic law, on the other other hand, holds that a sexual relationship is a crime unless it is between husband and wife, or was, in the old days, a master and his slave concubine”.
The liberality of the rules of legitimacy seems to have been based on the concern of the Muslim law-givers for dastardly, while the strictness in the preservation of sexual morality was probably the direct outcome of the prevalent sexual anarchy in the pre-Islamic Arabia. As to the former, Abdul Rahim observes: ‘The parentage of a child is determined in the principle that it always follows the marital bed.
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The father of a child born in wedlock is presumed to be the husband of the woman giving birth to it and a child which is born after six months of a marriage and during its continuance is said to be born in wedlock.
The legal effect of marriage in fixing the paternity of a child also continues, according to the Hanafis, for two years, and according to the Malikis and the Shafis, for four years, after the separation by divorce or death”.