Introduction

• ‘Maternity’ is a legal relation between mother and a child and ‘paternity’ is a legal relation between father and child.
• The term ‘parentage’ is generally used for the legal relationship which a child has with the parents. These legal relationships are associated with certain rights and duties, such as mutual rights of inheritance, maintenance and guardianship.
  • Maternity, how established: -Under Sunni law, the maternity of a child is established in the woman who gives birth to the child irrespective of whether the birth was the result of a wedlock or zina (adultery).
    • In Shia Law, mere birth is not sufficient to establish maternity; it has to be also proved that the birth was a result of a lawful marriage.
  • Paternity, how established: - The paternity of a child can only be established by marriage between its parents. The marriage may be valid or irregular, but it must not be void. It is established in the husband of the mother of the child.

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 sons and daughters. It is also known as ikrar-e-nasab. Also, such acknowledgement need not be expressed, it can also be implied by conduct.
• A person born in lawful marriage is said to be the legitimate child of the spouses. So, the main point in case of the legitimacy of a child is the marriage between his or her parents.

Laws of Legitimacy (Indian Evidence Act, 1872)

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 (about 9 months) of the dissolution of the marriage as long as the mother did not remarry in such a time.

Acknowledgement of Paternity (Ikrar-e-nasab)

• Acknowledgement of paternity by a person means that he has accepted himself as father of a child where the legitimacy of a child is neither proved nor disproved the acknowledgment of paternity by a person may establish the existence of a valid married and also the legitimacy of the child.
• It may be express or implied in the case of a child who is proved to be the child of a third person or illegitimate, the acknowledgment shall carry no force.

Conditions of a valid acknowledgment -

1. The acknowledgment must be with the distinct intention of conferring the status of legitimacy.
2. The acknowledger must be at least twelve and a half years older than the person acknowledged.
3. The child so acknowledged must not be known to be the child of another.
4. The child, if adult must confirm or acquiesce in acknowledgment.
5. It is essential to show that a lawful marriage is possible between the acknowledger and child’s mother and the child is not the fruit of an adulterous intercourse.
6. The acknowledger must be an adult and sane.

Effects of acknowledgment: -

Acknowledgment of paternity raises a two fold presumption

1. In favour of child claimant: It produces all the legal effect of a natural paternity and vests in the child the right of inheriting from acknowledger.
2. In favour of the wife (i.e., the mother of an acknowledged child): It has the effect of giving her the status of legal wife and hence the right of inheritance.

Case Laws:

• Habibur Rehman v. Altaf Ali (1918):
  • The Calcutta High Court held that legitimacy of a child can purely be established by marriage. In zina, even if the parents of an illegitimate child can validly marry each other in the future, it cannot be regarded as a legitimate child post that.
• Zamin Ali v. Aziz Nissa (1939):
  • The Allahabad High Court observed that a statement (acknowledgement) of the deceased father that he was married to the mother of the child, is evidence of a valid marriage, from which legitimacy of the child may be presumed.