The legitimacy of a child, that is the father-child relationship, is entirely based on the lawfulness of the wedlock between its parents. How is the above statement correct? Also, state so to how a marriage between the parents of the child may be established.

Question: The legitimacy of a child, that is the father-child relationship, is entirely based on the lawfulness of the wedlock between its parents. How is the above statement correct? Also, state so to how a marriage between the parents of the child may be established. [BJS 1986]

Find the question and answer of Muslim Law only on Legal Bites. [The legitimacy of a child, that is the father-child relationship, is entirely based on the lawfulness of the wedlock between its parents. How is the above statement correct? Also, state so to how a marriage between the parents of the child may be established.]

Answer

The statement that "the legitimacy of a child is entirely based on the lawfulness of the wedlock between its parents" is correct in the context of the presumption of legitimacy under Muslim personal law and many other legal systems. This means that a child born within a lawful marriage is presumed to be the legitimate offspring of the husband, regardless of whether or not he is the biological father of the child.

A marriage between the parents of the child may be established through a legal marriage ceremony or registration process, which is typically performed by a religious or government official. In Muslim personal law, marriage is a contract between the husband and wife, which is executed through the offer and acceptance of the husband to marry the bride and the bride's assent or acceptance. The contract is then formally documented, and it is witnessed by two adult Muslim witnesses.

Conditions To Prove a Valid Marriage

If a valid marriage (sahih) takes place between a man and a wife, and a child is born in that marriage then it is considered to be a legitimate child even if the process of a formal acknowledgement does not take place.

The conditions that validate a marriage are:

• If a man and a woman have been staying together for a significant amount of time, the condition to validate this kind of marriage is that the woman should not be a prostitute.
• If a man acknowledged the woman as his wife.
• If a man acknowledges the paternity of a child born to a woman, and the conditions of a valid acknowledgement are abided by.

In Rashid Ahmed v. Anisa Khatun, (1932) 34 Bom L.R. 475, A, a Muslim, divorced his wife B, by three pronouncements of talaq, but afterwards, continued to cohabit with her, and treated her as his wife for fifteen years. During this period, five children were born to them, all of whom he treated as his legitimate children. However, the Privy Council held that the children were illegitimate. In this case of divorce by three pronouncements, before A and В could remarry, В should have been married to another man in the interval and divorced by that man. As there was no proof of such marriage with another man and divorce by him, a presumption of remarriage between A and В could not be raised, and hence, the children were held to be illegitimate, and could not inherit from their father.

The observations of the Allahabad High Court on an acknowledgement of paternity in Muhammad Allahabad v. Muhammad Ismail, [(1886) ILR 8 All 234], are relevant. In that case, the Court observed: “The Muhammadan law of acknowledgement of parentage, with its legitimating effect, has no reference whatsoever to cases in which the illegitimacy of the child is proved and established, either by reason of a lawful union between the parents of the child being impossible (as in the case of an incestuous intercourse or an adulterous connection) or by reason of a marriage, necessary to render the child legitimate, being disproved.”

• Muslim Law – Notes, Case Laws, And Study Material
• Test Series for Competitions