The main pivot in cases of paternity and legitimacy is marriage. It is so also in the case of an acknowledgement.

Question: The main pivot in cases of paternity and legitimacy is marriage. It is so also in the case of an acknowledgement. [BJS 1978]

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Answer

The concept of paternity and legitimacy is closely tied to the institution of marriage, as it establishes the legal relationship between a father and his child. In most legal systems, marriage is considered to be the primary means by which paternity and legitimacy are established. This is because marriage is seen as a formal, legally binding commitment between two people, which creates certain legal rights and responsibilities for both parties.

When a child is born to a married couple, the law assumes that the husband is the father of the child, and the child is considered to be legitimate. This is known as the doctrine of "presumption of paternity," and it is based on the assumption that the husband and wife were engaging in sexual relations during the period of conception.

However, there are situations where the paternity of a child may be called into question, such as when a child is born out of wedlock, or when there is doubt about the identity of the father. In such cases, the law may require additional evidence to establish paternity and legitimacy.

One such way to establish paternity and legitimacy is through acknowledgement. An acknowledgement is a legal statement made by the father in which he recognizes his paternity and accepts the child as his own. This can be done voluntarily, such as through a written statement or a court proceeding, or it can be done through a genetic test.

An acknowledgement can be a powerful tool in determining paternity and legitimacy, as it creates a legal presumption of paternity. This means that once the father has acknowledged his paternity, the law will consider him to be the father of the child, and the child will be considered to be legitimate.

However, there are certain limitations to the use of an acknowledgement as a means of establishing paternity and legitimacy. For example, in some legal systems, an acknowledgement can only be made by the father and not by the mother. Additionally, an acknowledgement may not be binding if it was made under duress or if it was made by a person who was not competent to make such an acknowledgement.

On the point of presumption, marriage and acknowledgement came to be critically examined by the Privy Council in Habibur Rahman Chowdhury v. Altaf Ali Chowdhury, (1921) L.R. 48 I.A. 114, the head-note is in these terms :

“Under the Mohammedan law no statement made by a man that another, proved to be illegitimate, is his son can make that other legitimate. If an acknowledgement is of legitimate sonship, and that relationship is possible in fact and law, it gives rise to a rebuttable presumption that there was a marriage between the parents.”

Lord Dunedin in the course of his judgment in the case of Roshanbai v. Suleman Haji Ahmed Umar, (1944) 46 BOMLR 328, made the distinction between legitimacy and legitimation clear and observed as follows (p. 120):-

“Before discussing the subject, it is as well at once to lay down with precisian the difference between legitimacy and legitimation. Legitimacy is a status which results from certain facts. Legitimation is a proceeding which creates a status which did not exist before. In the proper sense there is no legitimation under the Mohammedan law. Examples of it may be found in other systems. The adoption of the Roman and the Hindu law effected legitimacy. The same was done under the Carton law and the Scotch law in respect of what is known as legitimation per subsequens matrimonium. By the Mohammedan law a son to be legitimate must be the offspring of a man and his wife or of a man and his slave; any other offspring is the offspring of zina, that is, illicit connection, and cannot be legitimate. The term ' wife' necessarily connotes marriage; but, as marriage may be constituted without any ceremonial, the existence of a marriage in any particular case may be an open question. Direct proof may be available, but if there be no such, indirect proof may suffice. Now one of the ways of indirect proof is by an acknowledgment of legitimacy in. favour of a son.
This acknowledgment must be not merely of sonship, but must be made in such a way that it shows that the acknowledgor meant to accept the other not only as his son, but as his legitimate son. It must not be impossible upon the face of it; i.e., it must not be made when the ages are such that it is impossible in nature for the acknowledgor to toe the father of the acknowledgee, or when the mother spoken to in the acknowledgement, being the wife of another, or within prohibited degrees of the acknowledger, it would be apparent that the issue would be the issue of adultery or incest. The acknowledgement may be repudiated by the acknowledgee. But if none of these objections occur, then the acknowledgement has more than a mere evidential value. It raises a presumption of marriage-a presumption which. may be taken advantage of either by a wife-claimant or a son-claimant. Being, however, a presumption of fact, and not juris et de jure, it is, like every other presumption of fact, capable of being set aside by contrary proof. The result is that a claimant son who has in his favour a good acknowledgement of legitimacy is in this position : The marriage will be held proved and his legitimacy established unless the marriage is disproved. Until the claimant establishes his acknowledgment the onus is on him to prove a marriage. Once he establishes an acknowledgment, the onus is on those who deny a marriage to negative it in fact.”

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