Laws For everyday life
Parentage and legitimacy under Muslim Law
Shah Md. Mushfiqur Rahman
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law.msu.edu |
Parentage and legitimacy have serious implications on a person's status regarding his use of father's title, different rights as against parents and most importantly its right to inheritance. A person born within wedlock is entitled to every right that may accrue to a legitimate child and the opposite would deprive him from most of them.
Parentage is the relationship of parents to their child or children. The relation between a father and his child is called paternity. The relation between a mother and her child is called maternity. The rules of maternity are far more liberal than that of paternity in Islamic law. Maternity emphasises the natural relationship between a mother and her child, while paternity is more of a legal phenomenon.
There are two modes of paternity known to the law:
* The law treats the natural father as the father of the child;
* Acknowledgement of paternity.
Adoption may lead to the result that someone who is not the actual father acquires rights of an actual father. But adoption is not recognized in Islam. The Koran clearly disapproves this artificial bond.
In Islamic law, where it is doubtful whether a person is the child of another, the acknowledgement of the father confers on the child the status of legitimacy. In considering these issues the distinction between the status of legitimacy and the process of legitimation must be kept in mind. Legitimacy is a status which results from certain facts. Legitimation is a proceeding which creates a status which did not exist before.
In proper sense there is no legitimation under the Islamic law. It must be remembered that no statement made by one man that a 'proved illegitimate' person is his child can make the second person legitimate. But where the illegitimacy is not conclusively proved, such a statement or acknowledgement is substantive evidence that the person so acknowledged is the legitimate child of the person who makes the statement.
Even in this case, circumstances should be such that the proposed father could really be the legitimate father of the child. It implies that legitimation per subsequens matrimonium or legitimacy by subsequent marriage is not recognized in Islamic law. Parentage is therefore established in Islam in one of the following two ways:
i) by birth during a regular or irregular marriage, or
ii) by acknowledgement, in certain circumstances.
Presumptions of legitimacy: The rules of presumptions as to legitimacy in Islamic law are as follows
1. A child born within six months of the marriage is illegitimate, unless the father acknowledges it.
2. A child born after six months of the marriage is legitimate, unless the father disclaims it.
3. A child born after the termination of marriage is legitimate if born within 10 lunar months in Shia law; within 2 lunar years in Hanafi law; and within 4 lunar years in Shafie or Maliki law.
The reasons for such divergent periods might be ascribed to imperfect knowledge of pregnancy prevalent in those early times or to the attitude of the old jurists that tried to protect the woman and her child from being subjected to the miseries associated to zina (illicit intercourse).
The present statutory position is found in the Evidence Act, 1972. According to section 112 of the Act:
A child born during the continuance of a valid marriage, or within 280 days after its dissolution, the mother remaining unmarried, is conclusively presumed to be legitimate, unless there was no access when he could have been begotten.
As indicated in the beginning of this article, no school of Islamic law recognises an illegitimate child's right to its biological father's property. But in Hanafi school of thought, a mother and her illegitimate child have mutual rights of inheritance. The same rule of mutual right of inheritance applies to other relations vis-à-vis the child with whom it is related through its mother.
Apparently the State law makes a deviation from this orthodox rule. Under section 13 of the Women and Children Repression Prevention Act 2000, a child born out of rape would be entitled to be recognized in both of its parent's identity. The cost of maintenance, for which the State is primarily responsible, could be realised from the assets of the father i.e. the rapist. It must be kept in mind that this extraordinary provision only applies to a child born as a result of rape. In other cases of illegitimate children, the original rules of personal law would be followed.
The writer is advocate, member of Dhaka Bar Association.
