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 I.A. 8)
ADVERTISEMENTS:
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.
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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 among 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. Acknowledgment of legitimacy of a child is one of the kinds of indirect proof.
ADVERTISEMENTS:
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:
1. The acknowledger must possess the legal capacity for entering into a valid contract.
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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, and then the presumption of legitimacy cannot be raised by acknowledgement, however strong such presumption may be. (Rashid Ahmed v. Anisa Khatun, (1932) 34 Bom L.R. 475 PC. 59 I.A. 21)
In Rashid Ahmed’s case, A, a Muslim, divorced his wife B, by three pronouncements of talak, but afterwards, continued to cohabit 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 В could remarry, В should have been married to another man in the interval and divorced by that man.
As there was no proof of such marriage with another man and a divorce by him, a presumption of remarriage between A and В 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 Allahabad v. Muhammad Ismail (1888-10- All. 289) are relevant. In that case, the Court observed:
“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.”