What do you mean by legitimacy and legitimation under the Muslim law? Discuss the rules of valid acknowledgement....

Question: What do you mean by legitimacy and legitimation under the Muslim law? Discuss the rules of valid acknowledgement with reference to status of adoption under the Muslim law. [BJS 2021]

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Answer

Legitimacy under Muslim law refers to the status of a child born to legally married parents. In any law, a legitimate child born of a valid marriage is entitled to all the rights of inheritance and financial support from both of their parents.

The determination of the legitimacy of a child depends on certain criteria the primary source being the existence of a valid marriage at the time of the child's birth and compliance with the permissible gestational periods. As a rule, a child is considered legitimate if it is born within a period that can be between six months (minimum) and two years (maximum) after the dissolution of the marriage, although this period can vary depending on the Islamic school of thought.

Legitimacy grants a lot of advantages to the child in terms of inheritance, custody, or social status. Legitimate children have the legal right to inherit from both their parents and they are even entitled to parental custody and guardianship.

As far as the concept of legitimization in Muslim law is concerned, it refers to the process by which an illegitimate child (a child born outside wedlock of a valid marriage in the eyes of law) is given the status of a legitimate child. Legitimization can be achieved through recognition by the father, a practice known as iqrar, or through the subsequent marriage of the parents. Thus, there are primarily two methods of legitimization that are:-

1. Acknowledgement (Iqrar): The father voluntarily and unequivocally recognizes the child as his own, conferring legitimacy upon the illegitimate child.
   
2. Subsequent marriage: The marriage of the parents after the birth of the child can legitimize the child under certain conditions.

Conditions for Legitimization

1. The acknowledgement must be unequivocal, voluntary and without contradictory evidence.
2. The father must be of sound mind and legal age.
3. There must be no legal or biological impossibility regarding the paternity of the child.

Rules for valid acknowledgements

• Unqualified assertion by the father: The father must recognise the child as his own without any conditions or reservations.
• Intention: The intention of the father must clearly be stated to have accepted the child as his legitimate offspring.
• Public Declaration: The acknowledgement by the father should ideally be made publicly or in the presence of witnesses to avoid any dispute in future.
• Acceptance by the child: If the child is of legal age, he or she must accept the acknowledgement.

Status of Adoption under Muslim Law

The traditional view on adoption in Muslim Law does not recognize the process of adoption in the manner it is understood in other legal systems like common understanding about filiation and the grant of inheritance rights of the child being permanently transferred from the biological parents to the adoptive parents. Emphasis in this regard is placed on the Holy Qur'an, wherein particularly in Surah Al-Ahzab 33:4-5 it talks about the significance of maintaining biological parentage.

Muslim Law supports the concept of kafala, which is comparable to foster care. Under Kafala, it means that the needs of the child will be taken care of without having to change the biological parentage or inheritance rights of the child. Foster parents can of course take the role of guardian to look after but cannot replace the position of biological parents.

In modern times, Muslim-majority countries lately have started to adapt their legal systems to meet modern societal needs without neglecting their traditional principles. Adoption practices in these countries are geared towards respecting biological lineage and inheritance rules.