Paternity
By the Mohammedan law a son to be legitimate must be the offspring of a man and his wife or 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 connects marriage; a 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.
Habibur Rahman Vs. Altaf Ali (22) A. (P.C) 159, 60 I.C 837. 48 Cal 856.
Acknowledgment or prolonged cohabitation as husband and wife raises a mere presumption. But where evidence came on record that there was no marriage at all, when the children were begotten the children cannot be legitimated by acknowledgment. Razia Begum Vs. Shalhebzadi Anvar Begum, (58) A. Andra Pradesh 195.
Where a married woman was driven out by the husband within few days after the marriage on the ground of her concealed pregnancy and a child was born to her within about four months after her being driven out, no presumption under section 112 of the Evidence Act, 1872 can be raised, as there was no valid marriage.
Abdul Raheman Kutty Vs. Ayesha Beebi, (60) A. Ker, 101.
Rules of presumption of legitimacy under the Mohammedan Law according to Hanafi Law are as follows:-
(a) a child born within less than six months after marriage is illegitimate;
(b) a child born after six months from the date of marriage is presumed to be legitimate;
(c) a child born within two years after termination of marriage is presumed to be legitimate unless disclaimed by lian. According to Shafi and Maleki law, the period is four years and according to Shia law it is ten months. The legitimacy of a child of Mohammedan parents may properly be presumed or inferred from circumstances without proof or at least without any direct proof, either of a marriage
between the parents or of any formal act of legitimation.
Mohammad Bauker Vs. Sharfoonnessa, 8 M.L.A 136, 165 I.C 232.
A statement of a deceased father that he was married to the mother of the child is evidence of marriage from which the legitimacy of the child may be presumed.
Zamin Ali Vs. Azizunnessa, 55 All 139. 144 I.C 433.
The doctrine of acknowledgment of legitimacy is limited to cases of uncertainty of legitimate descent and proceeds entirely upon an assumption of legitimacy and establishment of such legitimacy by force of such acknowledgement. The doctrine of acknowledgment is not a mere rule of evidence, but is part of Substantive law of inheritance. So the question relating thereto must be determined with reference to Islamic jurisprudence.
Mohammad Allahdad Vs. Mohammad Ismail, 10 All 289, 337.
An acknowledgment may be express or implied which may be presumed from the fact that the person has habitually and openly treated the child as his legitimate child.
Mohammad Azmat Vs. Lalli Begum 9. 1.A 8, 8 Cal 422. Sadakat Hossain Vs. Mohammad Eusuf, 10 Cal 663. Abdul Razak Vs, Aga Mohammad Gaffer, 21, Cal 666. 21. I.A 56. Bibi Fezeelatunnessa Vs Kamrunnessa,9 C.W.N 352, 8 Cal 422.
The person acknowledged must not be the offspring of Zina (unlawful intercourse) that is adultery, incest or fornication, if the mother could not have been the lawful wife of the acknowledger at the time when he was begotten or the mother was at that time was wife of another or was divorced by the acknowled ger or was within prohibited degree of the acknowledger.
Habibur Rahman Vs. Altaf Ali 48, I.A, 144, 48 Cal 856, 60 I.C 887 Sadik Hossain Vs. Hashim Ali, 43 IA 212, 38 All 627, 36 I.C, 104 Rashid Ahnmed Vs. Anisa Khatun 59 I.A 54 AIl 46, 10 All 289, 34, Bom 111, 42 C.W.N, 272. Liaqat Ali Vs. Karimunnessa, 15 All 396, 4 I.C 254, 48, I.A, 114, 60, I,C 837.
The person acknowledged must not be known to be the child of another man. Usman Mia Vs. Valli Mohammad, (1916) 40 Bom, 28, 30 I.C 904
Acknowledgment is sufficient to establish a valid marriage unless the contrary appears provided the marriage is not disputed. If the marriage was not possible at all there can be no acknowledgement. Fatema Bi Ammal Vs. A. A. Md. Mohiuddin, (1971) 2 M.L.J 451.
Acknowledgment as a son means acknowledgment as a legitimate son. Fazeelun Bibi Vs. Omdah Bibi, (1868) 10 W.R 469, 36 I.C 104, 40 Bom 28.
The issue of adultery, incest or fornication can not be legitimated by acknowledgment. The issue of a remarriage between divorced persons, where the wife was repudiated by triple divorce without intervening marriage would also be the issue of fornication on the ground that such remarriage is void. Rashid Ahmed Vs. Anisa Khatun (1932) 59 I.A 21, 54 All 46, 153 I.C 762.
No presumption of marriage arises from long cohabitation if the woman was a prostitute when she was brought to the home of the man whom she claims to be her husband. But if the man acknowledges his children by her as his legitimate children, marriage with her will be presumed, lawful when the children were begotten. But if it is proved definitely that there was no marriage between the parties when the children were begotten. The issue would be of fornication and they can not be legitimated by acknowledgment.
Gaznafar Vs. Kaniz Fatema, (1910) 37 I.A 105, 32 All 345, 6, I.C 674. Imambandi Vs. Mutsuddi, (1918) 45, 1.A 73, 47 I.C 513, 45 Cal 878.
Acknowledgment gives the right of inheritance to the children acknowledged of the property of the acknowledger. Khaja Hayat Vs. Raijan Khanam, 3 M.I.A 295. Khajoornnesa Vs. Rowshan Jahan, 2 Cal 184. 3, I.A 291.
Acknowledgment of legitimacy once made cannot be revoked. Ashrafuddoula Vs. Hyder Hossain, 11 M.I.A 94. Mohammad Allahdad Vs. Mohammad Ismail 10 All 289.
Mohammedan Law does not recognize adoption as mode of filiation and confer no right of inheritance.
Mohammad Allahdad Vs. Mohammad Ismail, 10 All 289, 39, Cal 418, 39, I.A 19, 13, I.C 344. 39 Bom L.R 1324.