This topic has now become outdated because Islamic law of the presumption of legitimacy is not applicable in India. In India, the conclusive proof of the legitimacy of a child (whether Muslim or non-Muslim) is established under the provisions of the Indian Evidence Act, 1872. However, a brief description of Islamic law on this point cannot be ignored because of its academic value. Under the pure Muslim law, rules regarding the presumption of legitimacy are as under:
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1. A child born within six months of the marriage is illegitimate unless the father acknowledges it.
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2. A child born after six months of the marriage is legitimate unless the father disclaims it by accusing his wife for adultery.
3. A child born after the dissolution of the marriage is legitimate if born:
(i) Within 10 months of the dissolution (Shia law);
(ii) Within 2 years of the dissolution (Hanafi law);
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(iii) Within 4 years of the dissolution (Shafie & Maliki law).
The above mentioned rules of presumption of legitimacy, at least the different periods given in rules (ii) and (iii) may not be believable, but two reasons may be attributed to such rues. Firstly, in the absence of any advanced medical science, the jurists of those days had no perfect knowledge of the normal period of delivery of a child after its conception.
Secondly, there was a very severe punishment for illicit intercourse under the classical Muslim law. Therefore, if an illegitimate child was born to a woman, not only the child was socially boycotted but its mother was also punished for Zina.
Humane considerations must have persuaded those jurists to avoid this situation created by the misuse of law of divorce and disclaim of children by the husbands of those days. Citing Baillie, Ameer Ali, observes.
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“Ancient Sunni doctors in laying down such long periods had in view those abnormal conditions which sometimes perplex the most skillful of the medical faculty in Europe. D’Ohssan and Autarya, on the contrary, are of opinion that the old jurist consults of the Sunni school were actuated by sentiments of humanity, and not by any indifference to the laws of nature, their chief desire being to prevent an abuse of the provisions of the law regarding divorce and disavowal of children.”
It is submitted that the abnormal periods of gestation in other schools may also be understood in the light of the second reason given above. But, as stated in the beginning, these presumptions of Muslim law regarding parentage (or legitimacy) are rules of evidence and must be deemed to have been repealed by the Indian Evidence Act, 1872, except in so far as they are in consonance with this Act.
The Present Law of Legitimacy:
A uniform law relating to the conclusive proof of legitimacy of a person, irrespective of his religion, has been laid down in Section 112 of the Indian Evidence Act, 1872. This section provides that following facts shall be the conclusive proof of the legitimacy of a person:
(1) That the person was born during the continuance of a valid marriage between his mother and any man, or
(2) That the person born within two hundred and eighty days after the dissolution of the said marriage, the mother remaining unmarried, unless it can be shown (in both the cases) that the parties to the marriage had no access to each other at any time when the person could have been begotten.