Stating the concept of presumption of legitimacy under Muslim Law, point out the differences between Muslim Law and section 112 of the Indian Evidence Act in this regard.

Question: Stating the concept of presumption of legitimacy under Muslim Law, point out the differences between Muslim Law and section 112 of the Indian Evidence Act in this regard. [JJS 2014]

Find the question and answer of Muslim Law only on Legal Bites. [Stating the concept of presumption of legitimacy under Muslim Law, point out the differences between Muslim Law and section 112 of the Indian Evidence Act in this regard.]

Answer

Under Muslim Law, the presumption of legitimacy applies to children born within wedlock, meaning that any child born to a married couple is presumed to be legitimate. This presumption can only be rebutted by clear and convincing evidence to the contrary.

Section 112 of the Indian Evidence Act, on the other hand, applies to all children, regardless of whether they were born within or outside of wedlock, and presumes that a child born within 280 days of the termination of a marriage is legitimate, unless there is evidence to the contrary.

The main difference between the two is that Muslim law applies only to children born within wedlock, whereas section 112 of the Indian Evidence Act applies to all children. Additionally, Muslim law requires clear and convincing evidence to rebut the presumption of legitimacy, whereas section 112 of the Indian Evidence Act only requires evidence to the contrary.

The major five differences between the two are summarised below:

1. Application: Muslim law presumes the legitimacy of the child born within wedlock, whereas Section 112 of the Indian Evidence Act applies to all children, regardless of whether they were born within or outside of wedlock.

2. Time period: Section 112 of the Indian Evidence Act presumes that a child born within 280 days of the termination of a marriage is legitimate, whereas, under Muslim Law, there is no time limit mentioned.

3. Rebuttal of Presumption: Muslim law requires clear and convincing evidence to rebut the presumption of legitimacy, whereas section 112 of the Indian Evidence Act only requires evidence to the contrary. This means that Muslim Law has a higher standard of proof as compared to the Indian Evidence Act.

4. Illegitimate children: Muslim law does not recognize illegitimate children as a child born out of wedlock is considered illegitimate and does not have any rights or inheritance. Section 112 of the Indian Evidence Act, on the other hand, applies to all children, regardless of whether they were born within or outside of wedlock, and presumes that a child born within 280 days of the termination of a marriage is legitimate.

5. Jurisdiction: Muslim law is applicable only to Muslims, whereas Section 112 of the Indian Evidence Act is applicable to all citizens of India, regardless of their religion.

The concept of presumption of legitimacy under Muslim Law and section 112 of the Indian Evidence Act are similar as both of them provide a presumption of legitimacy to the child born out of wedlock, but they differ in the application, time period, proof required, rights of illegitimate children and jurisdiction. Muslim law applies only to children born within wedlock and requires clear and convincing evidence to rebut the presumption, whereas section 112 of the Indian Evidence Act applies to all children and requires only evidence to the contrary.

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