INTRODUCTION

In Islamic law, the concept of paternity is of great significance. Paternity of a child is presumed after the acknowledgment is made by the father. Acknowledging a child, in Islam, is a crucial aspect of family relationships, as it establishes the child's legal status and rights. Acknowledgment is a formal declaration of paternity, and it is required for a child to have legal rights to inheritance, support, and other benefits. The acknowledgment of paternity is a legal process by which a man can formally recognize a child as his own. The acknowledgment of paternity in Islam is considered to be a legal act, which creates a bond between the father and the child. The acknowledgment of paternity can be established by various means, including verbal acknowledgment, written acknowledgment, or the performance of certain acts that indicate paternity.

The acknowledgment of paternity in Islam is a legal process by which a man can formally recognize a child as his own in cases of uncertainty with respect to the child's legitimacy. The recognition of paternity is an important concept in Islam as it establishes the child's rights and the father's responsibilities.

This concept of Acknowledgement of Paternity is, however, a highly patriarchal concept that is deeply ingrained in the Muslim Shariyat Law. It reflects the discriminatory mentality of the society. A child is labeled as legitimate or illegitimate solely based on acknowledgment by the father. In Islam, the concept of acknowledgment of a child is significant, and it has far-reaching implications for family relationships, inheritance, and other legal rights. This article examines the concept of legitimacy of child and acknowledgment of paternity and explores the intersection of patriarchy and the concept of acknowledgment of a child in Islam.

DECIDING THE LEGITIMACY OF A CHILD

In order to decide the question of legitimacy of the child, the paternity has to be proved.

The legitimacy of the child has to be decided from the date of conception of the child and not their date of birth. In addition to that, only a child born out of a Sahih Nikah or Fasid Nikah is considered to be legitimate. If the marriage is void to begin with or no marriage ever existed then the child would be considered illegitimate right away.

PRESUMPTIONS WITH REGARD TO LEGITIMACY OF A CHILD

There are several presumptions with regard to legitimacy of a child. They are as follows:

  1. In order for a child to be Jaez or legitimate, there should be an existence of a valid or Sahih nikah or irregular or Fasid nikah at the time of their conception. A child conceived after a valid or irregular marriage is considered to be a legitimate child.
  2. If a child is born after a period of six (minimum) lunar months after a valid or irregular marriage, then the child so born would be a legitimate child.
  3. A child born after the dissolution of marriage is legitimate in certain cases. Different schools of Muslim Law prescribe different time periods for the same.
    1. According to the Shia Law, the child must be born within ten lunar months of the dissolution of marriage.
    2. According to the Hanafi School of the Sunni Law, the child must be born within 2 lunar months of the dissolution of marriage.
    3. According to Maliki School and Shafi School of the Sunni Law, the child must be born within 4 lunar months of the dissolution of marriage.

In order to better understand the concept of legitimacy of child, we shall peruse some illustrations:

  1. A, a Muslim woman conceived a baby 3 months after her marriage to B, a Muslim man. In this scenario, the child after their birth would be a legitimate child because the child was conceived post-marriage.
  2. A and B, two Muslim persons, were in a live-in relationship. One fine morning, A felt nauseous. To be on the safer side, she decided to take a pregnancy test. The test turned out to be positive. Both A and B decided to go ahead with the pregnancy. 9 months later, A delivered a beautiful baby girl named C. C would be considered as an illegitimate child.
  3. A and B were two Muslim persons who decided to run away and get married. They were under prohibited degrees of marriage. Soon after their marriage, they conceived a baby. The child born out of such a relationship would be an illegitimate child because the marriage between A and B was void.
  4. A and B were two Muslim persons who were in a relationship. They indulged in unprotected sexual intercourse with each other due to which A got pregnant. Both of them, decided to get married subsequently. 2 months later they had baby boy named C. C would be considered as an illegitimate child because despite the fact that a valid marriage existed between C's parents A and B at the time of his birth, his parents were not married at the time he was conceived.

CAN AN ILLEGITIMATE CHILD BE LEGITIMIZED?

In order for a child to be considered legitimate, either there should be an unequivocal legitimacy since their birth or in cases of uncertainty, there should be acknowledgment of paternity by the father.

In the latter case, if a Muslim father acknowledges the paternity of an illegitimate child, it would not render the child to become legitimate merely because of acknowledgment of paternity.

In a historical case of Mohd. Allahdad Khan v. Mohd. Ismail Khan, the Hon'ble court held that if the illegitimacy of a child is proved, then acknowledgment of paternity would have no effect.

In another case of Habibur Rahman Chowdhury v. Altaf Ali Chowdhury, the Hon'ble court observed that if a child is proved illegitimate, then they cannot become legitimate merely by acknowledgment.

ACKNOWLEDGMENT OF CHILD

In Islam, acknowledgment of child applies only in circumstances when there is vagueness with respect to legitimacy of a child. In order for the acknowledgment to be legally valid, certain conditions have to be fulfilled:

  1. Only a natural parent can acknowledge the paternity of a child. Therefore, only the father can acknowledge paternity.
  2. A lawful marriage between the mother of the child and the father of the child should be established.
  3. Acknowledgment of a child can either express or implied.
  4. The father must acknowledge the child as his legitimate child and not just his child.
  5. The father of the child should be competent to acknowledge paternity. He should be an adult and a sane person.
  6. Acknowledgment of a child once given cannot be revoked.

PATRIARCHY AND THE CONCEPT OF ACKNOWLDEGMENT OF PATERNITY

In Islam, the acknowledgment of a child is an important concept, and it is governed by certain rules and regulations. Patriarchy plays a role in this concept, as it determines the legal and social status of a child. According to Islamic law, the father is the legal guardian of the child, and he has certain rights and responsibilities towards the child. These include providing for the child's basic needs, such as food, shelter, and clothing, as well as protecting the child's rights and interests. In terms of acknowledging a child, Islamic law recognizes two types of acknowledgment: acknowledgment through marriage and acknowledgment through paternity. In both cases, the father is the one who must acknowledge the child. If the child is born within a marriage, the father is automatically considered the legal father, and the child is considered legitimate. However, if the child is born outside of marriage, the father must formally acknowledge the child in order for the child to be recognized as legitimate. In cases where the father does not acknowledge the child, the child is considered illegitimate, and he or she may face certain legal and social disadvantages. For example, the child may not be able to inherit from the father or may not be able to claim certain benefits or rights that are reserved for legitimate children.

ANALYSIS AND CONCLUSION

Acknowledgment of paternity is the process of establishing the legal relationship between a child and their father. In Islam, legal acknowledgment is important for determining the child's legal rights, including inheritance, financial support, and guardianship. However, this concept of acknowledgment of a child has its roots in patriarchy.

The concept of acknowledgment of child aims to decide legitimacy of a child in cases of uncertainty. However, this power is vested only in the hands of the father. In this way, this process reinforces patriarchal values and norms. Men are expected to take on the responsibility of acknowledging their children, which gives them the power to determine their children's legal rights, inheritance rights, and social status. This augments the patriarchal notion that men are the primary caretakers and breadwinners of the family. Another patriarchal implication of the acknowledgment of a child in Islam is that it reinforces gender roles. Islamic law is based on the concept of gender roles, where men are expected to be the primary providers for the family, while women are expected to be the primary caretakers of the household. The acknowledgment of a child in Islam buttresses these gender roles by giving men the power to determine their children's legal rights, inheritance rights, and social status.

REFERENCES

  1. The Legal Status of a Child Under Muslim Law, (1994) 5 DULJ 87
  2. ILR (1888) 10 All 289
  3. 1921 SCC OnLine PC 27
  4. Diwan (2021) Family Law 12th Allahabad Law Agency
  5. Gandhi (2019) Family Law 2nd Vol. 1.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.