Legitimacy is a status which directly results from the fact of paternity of a child. When the paternity of a child is established, its legitimacy is also established. Basis of legitimacy is paternity which depends upon the existence of a marriage. Therefore, under Muslim law the legitimacy of a child is established by a direct or indirect proof of marriage between the father and mother of the child. In cases where no direct proof of marriage is available, the existence of a lawful marriage may be presumed by:
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(i) A prolonged cohabitation of a man and a woman (not prostitute), or
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(ii) By the fact that a man acknowledges a woman as his wife, or
(iii) By the fact that man acknowledges himself as father of a child.
Thus, we find that the basis of legitimacy under Muslim law is the existence of marriage and the marriage itself may be presumed when a man acknowledges paternity to a child bom to a woman (wife). It may be said that the marriage between a man and woman and the legitimacy of their off-springs are corelated.
We have already seen that juridically the object of a Muslim marriage is to legalise intercourse and to legitimatise the issues. In Habibur Rahman v. Altaf Ali, the Privy Council while explaining the Muslim law of legitimacy observed:
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“A son to be legitimate must be the off-spring of a man and his wife…………………….; any other off-spring is the off-spring of Zina that is illicit connection, and cannot be legitimate. The term ‘wife’ necessarily connotes marriage; but as marriage may be constituted without any ceremonial, the existence of a marriage in any particular case may be an open question. Direct proof may be available but if there be no such (direct proof), indirect proof may suffice. Now, one of the ways of indirect proof is by an acknowledgement of legitimacy in favour of a son.”
It is to be noted that acknowledgement here means a declaration ascertaining the paternity where, although the marriage exists but the child’s paternity is doubtful because there is no direct proof of the marriage under Muslim law. An acknowledgement cannot legitimatise a child who is proved to be illegitimate.