Write a short but critical note on the presumption of legitimacy.
Find the question and answer of Muslim Law only on Legal Bites.
Question: Write a short but critical note on the presumption of legitimacy. [BJS 1984]Find the question and answer of Muslim Law only on Legal Bites. [Write a short but critical note on the presumption of legitimacy.]AnswerThe presumption of legitimacy under Muslim personal law refers to the legal principle that presumes the legitimacy of a child born within a marriage as the child of the husband. This principle is based on the idea that the child is born as a result of the marital...
Question: Write a short but critical note on the presumption of legitimacy. [BJS 1984]
Find the question and answer of Muslim Law only on Legal Bites. [Write a short but critical note on the presumption of legitimacy.]
Answer
The presumption of legitimacy under Muslim personal law refers to the legal principle that presumes the legitimacy of a child born within a marriage as the child of the husband. This principle is based on the idea that the child is born as a result of the marital relationship and is therefore assumed to be the legitimate offspring of the husband. However, this presumption can be challenged if there is evidence to suggest that the husband is not the biological father of the child.
This principle has been widely criticized for being discriminatory against women, as it places the burden of proof on the woman to prove her infidelity or the husband's non-paternity, while the husband is not held to the same standard. This can lead to unfair treatment and discrimination against women in situations of paternity disputes, and can also perpetuate patriarchal power dynamics within families.
Additionally, this principle can be criticized for not taking into account advances in genetic testing and modern methods of determining paternity, which may provide more accurate and reliable evidence of paternity than traditional methods such as witness testimony.
A child can only be acknowledged by the husband of his/her mother, the man should according to the Mohammedan Law, be competent to acknowledge. The flexibility in the doctrine of such acknowledgement is that it gives attention to the husband of the mother of the child and not really its biological father.
In Mohammed Allahdad Khan v. Mohammed Ismail Khan, (1886) ILR 8 All 234, Justice Mehmood held that where marriage cannot be proved by direct evidence and no legitimacy be established, Muslim law prescribes a means whereby the marriage and legitimacy may be established as a matter of substantive law, and that is an acknowledgement of paternity.
If a child is born out of Zina, no matter who its biological father is, it cannot be legitimised even if that father wants to acknowledge it. The Mohammedan Law contains no provision as to the rights of the biological father of a child.
A child cannot be regarded as a sinner if it is born through Zina, but by virtue of him/her taking birth out of wedlock, by way of Zina, its legitimacy stands in question. It is the parents of the child that commit Zina but the child since birth is forced to suffer the consequences like living without a parental identity.
It was stated by the Hon'ble Supreme Court in the judgement of Gaurav Jain v. Union of India, (1997) 8 SCC 114, that excluding a required foundation of life for a child is a crime against humanity and not providing it with the natural rights it is entitled to, is a crime against humanity. The basic pretext of the entire argument is that a child is not at fault if it is born out of incest, but it still has to suffer the consequences.
Therefore, while the presumption of legitimacy under Muslim personal law may have been rooted in traditional cultural and societal norms, it is important to re-evaluate and reform this principle in light of modern scientific and legal developments, and to ensure that it does not perpetuate discrimination against women and children.