Explain the terms 'paternity' and maternity' under Muslim Law. Distinguish between 'legitimacy' and 'legitimation'. Does the Quran recognise adoption? Refer to case law. How does the acknowledgement of paternity take place?

Question: Explain the terms 'paternity' and maternity' under Muslim Law. Distinguish between 'legitimacy' and 'legitimation'. Does the Quran recognise adoption? Refer to case law. How does the acknowledgement of paternity take place? [BJS 2014]

Find the question and answer of Muslim Law only on Legal Bites. [Explain the terms 'paternity' and maternity' under Muslim Law. Distinguish between 'legitimacy' and 'legitimation'. Does the Quran recognise adoption? Refer to case law. How does the acknowledgement of paternity take place?]

Answer

Muslim law does not recognise the institute of adoption, which is recognised by other systems. Muslim law recognises the institution of ‘IKRAS’ (acknowledgement) where the paternity of a child, which means his legitimate decent from his father, cannot be proved by establishing a marriage between his parents at the time of conception of birth.

Muslim law recognises acknowledgement as a method whereby such marriage and legitimate decent can be established as a matter of substantive law for the purpose of inheritance.

Parentage (Rishta): Paternity and Maternity:

Paternity is the relationship between a child and his paternal figure, i.e., his father. Parentage under Muslim law is not a matter of fact. The only way to establish paternity is by marriage to the mother of the child. So as per Islamic law, maternity is by fact but paternity can only be by marriage. Maternity is a legal relationship between a mother and a child.

Maternity is a matter of fact the mother has actually given birth to the child. Parentage is important to give effect to certain rights and obligations regarding maintenance, guardianship and Inheritance. If there is no marriage between the mother and the father of the child, then such a child is illegitimate. And as per Sunni Law, such a child has no paternity. And according to Shia Law, such a child has neither paternity nor maternity. Parentage under Muslim law is only available to a legitimate 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,

1. There is cohabitation between the father and the mother

2. The father acknowledges the mother as his wife

3. The father acknowledges the child as his own.

So, if the marriage cannot be proven between the father and mother, or there is 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 spouse. So, the main point in the case of the legitimacy of a child is the marriage between his or her parents.

In Roshanbai v. Suleman Haji Ahmed Umar, (1944) 46 BOMLR 328, the Hon’ble Bombay HC has discussed the difference between 'legitimacy' and 'legitimation' in detail. In this case, the court held that legitimacy and legitimation are two different concepts under Muslim law. Legitimacy refers to the legal status of a child born within a lawful wedlock, who is considered to be the legitimate offspring of the husband. Legitimation, on the other hand, refers to the process of conferring legal status on a child born out of wedlock.

The court held that a child born out of wedlock does not have the same legal status as a child born within wedlock and that the father of such a child does not have the same rights and responsibilities as the father of a legitimate child. However, a child born out of wedlock can be legitimized by the father acknowledging paternity and marrying the mother.

This case highlights the distinction between legitimacy and legitimation under Muslim personal law and the fact that a child born out of wedlock is not automatically considered legitimate, but can be legitimized through the father's acknowledgement of paternity and marriage to the mother.

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, of 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 of the dissolution of the marriage as long as the mother did not remarry in such a time.

Acknowledgement of Paternity (Krar-e-Nasab)

This is a special mode prescribed by Muhammadan law for establishing the legitimacy of a child and the marriage of its mother. Since a marriage among Muslims may be constituted without any ceremony, the existence of a marriage in a particular case may be an open question. If no direct proof of such marriage is available, indirect proof may be relied upon. Acknowledgement of the legitimacy of a child is one kind of indirect proof. Thus, under certain conditions, if a Muslim acknowledges a child to be his legitimate child, the paternity of that child is established in him. But the doctrine applies only to cases where the fact of an alleged marriage is uncertain. It cannot be availed of to legitimize a child who is known to be illegitimate. The doctrine of legitimacy by acknowledgement proceeds entirely upon an assumption of legitimacy and establishment of legitimacy by the force of such acknowledgement.

Further, it is to note that the Quran does not explicitly recognize adoption in the same way that it is understood in modern Western legal systems. According to Islamic law, adoption is not recognized as a means of creating a legal relationship between an adopted child and the adoptive parent. The Quran does not contain any specific verses that deal with adoption, and the concept of adoption is not mentioned in traditional Islamic legal texts.

However, there is a concept in Islamic law known as "kafala", which is often translated as "guardianship" or "sponsorship". This concept allows an adult Muslim to take responsibility for a child and provides a legal framework for the child's care and maintenance. Under kafala, an adult Muslim can take in an orphaned child and provide for their needs, but the child does not legally become the adoptive child of the adult. The child retains their biological family ties and their right to inherit from their biological family.

The concept of adoption among Muslims was discussed in detail in the case of Shabnam Hashmi v. Union of India, [(2014) 4 SCC 1]. The Honourable Apex court invoked the Juvenile Justice Act, of 2000 saying that it is a secular law and applies to all people, including Muslims. Thus, a Muslim also even if he is governed by Muslim personal law can adopt a child.

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