Acknowledgment of Paternity under Muslim Law

Q. 8. What is meant by acknowledgment of paternity? State the conditions of valid acknowledgment and distinguish it from adoption in Hindu Law.

 

Meaning of Acknowledgement of Paternity

 

The term Iqrar (acknowledgement) literally means to confirm or establish and acceptance of a fact or facts. In law it is defined to be giving information for the establishment of a right in favour of another person against oneself.

 

Acknowledgement in law is the declaration of an existing right which another has against him (the acknowledger). The right declared is confined to one against the acknowledge, because if it is in his favour, it would amount to claim and not to an acknowledgement.

 

If there is no direct proof of legitimacy of paternity through marriage, indirect proof may suffice and one of the ways of indirect proof is by acknowledgement of legitimacy by father (not by mother) in favour of a child. In other words, the doctrine of acknowledgement of paternity applies only to cases of uncertainty as to legitimacy and in such a case acknowledgement has its effect but that effect always proceed upon the assumption of a lawful union between the parents of the acknowledged child.

 

Acknowledgement of paternity takes place in Islam as follows:

 (1) where the paternity of a child is not known or established beyond a doubt; and

 (2) it is not proved that the claimant is the offspring of zina and

(3) the circumstances are such that they do not rebut the presumption of paternity, as acknowledgement of paternity by the father is possible and effective.

According to Mulla, "Where the paternity of a child, that is, his legitimate descent from his father cannot be proved by establishing a marriage between his parents at the time of his conception or birth, the Mohammedan Law recognizes acknowledgement' as a method where by such marriage and legitimate descent can be established as a matter of substantive law for purposes of inheritance."

Mohammed Allahdad Khan vs Mohammed Ismail Khan (1887)

Justice Mehmood held that where marriage cannot be proved by direct evidence and no legitimacy be established, Muslim law prescribes a means whereby the marriage and legitimacy may be established as a matter of substantive law, and that is acknowledgement of paternity.Acknowledgement under Muslim law is a rule of Substantive Law and not a rule of evidence. It means it is not a presumption under the Evidence Act.It confers the status of sonship and rights to succeed. A child whose illegitimacy is proved by reason of the union between the parents not being lawful; such a child cannot be proved by acknowledgement.

 

Conditions of a valid acknowledgement

 

Islamic law provides a novel method of acknowledgement (iqrar) by father where by such conception or birth would be established to legitimate descent, provided following conditions are fulfilled :

 

1. The acknowledger is of sound mind and an adult and the child's mother is his wife by valid marriage. Even a dumb person may make valid acknowledgement if he could convey his meaning through signs.

2. The acknowledgement must be not merely of sonship, but must be made in such a way that it shows that an acknowledger meant to accept the other not only his son, but as his legitimate son.

Muhammad Ali Khan vs Muhammad Ibrahim Khan 1929 PC

The father made the acknowledgement of the child in a casual manner. He never intended that his acknowledgement should have serious effects. It was held by the Privy Council that the act of the father is not sufficient to confer the status of legitimacy.

 

3. The ages of the parties must be such as to admit of the acknowledger being the father of the person acknowledged. The acknowledger must be at least twelve and half years older than the person acknowledged.

4. The person acknowledged must not be the offspring of zina, that is adultery, incest or fornication, as he would be if his mother could not possibly have been the lawful wife of the acknowledger at any time when he could have been begotten, as where the mother was at that time the wife of another man or had been divorced by the acknowledger and the legal bar to remarriage had not been removed or was within prohibited degrees of the acknowledger. If the marriage is disproved, the issue would be the issue of fornication.

5. The person acknowledged must not be known to be the child of another man.

6. The acknowledgement must not have been repudiated by the person acknowledged as the person acknowledger is entitled to repudiate the acknowledgement, if he has attained the age when he can understand the transaction.

7. The acknowledgement must be definite and the child must be acknowledged to be the child of his body. If a man says that he has brought up a boy, it is not an acknowledgement of sonship, rather the reverse of it.

The acknowledged child may be a son or a daughter.

An acknowledgement need not be express. It may be presumed from the fact that one person has habitually and openly treated another as his child, that is, as a legitimate child. An acknowledgement once made cannot be revoked.

 

Effect of Acknowledgement of Paternity

 

On a valid acknowledgement being made there is a presumption of marriage between the acknowledger and acknowledgee's mother, and. unless rebutted, confers the right of inheritance on the child as his legitimate son and a similar right on the mother of the child.

 

The acknowledger may claim maintenance from the acknowledged person under Section 125 CrPC, if having no means to maintain himself.

An acknowledgement of legitimacy once lawfully effected, cannot subsequently be revoked either by the acknowledger or his representatives.

When the acknowledgement has been taken to be valid and accepted by the acknowledger, all mutual rights between the parties ie. father, mother and the child would accrue in regard to maintenance, inheritance and other rights and obligations arising out of such relationship.

 

Acknowledgement by mother

 

A mother may acknowledge the child to be son of a particular person to establish the child's paternity. But, this acknowledgement will be a valid one if the husband conforms the same or in case he is dead, by the other heirs who do not oppose such acknowledgement.

 

Distinction between Adoption and Acknowledgement of Paternity

 

1.       Adoption is recognised by Hindu Mitakshara Law by complete severance of the adopted son from his original family and his being transplanted in the new. Mohammedan law does not recognise adoption. Acknowledgement is recognised by Mohammedan law whereas Hindu Law does not recognise acknowledgement.

2. In adoption, child of someone else is taken in adoption. But, acknowledgement is in respect of one's own child.

3. Purpose of adoption is to bring a child in the family for succession and for conferment of spiritual benefit on the adoption while the purpose of acknowledgement is to remove doubts about paternity of the child.

 

4. The conditions of a valid adoption are: (i) There must be a person competent to give the child in adoption; (ii) There must be a person competent to take the child in adoption; in either case, if the giver or taker is a married man, consent of the wife is necessary; (iii) the child must be competent to be adopted. Child once adopted cannot be adopted again. Generally, the child adopted should be less than 15 years and unmarried; (iv) If the adoption is of a child of opposite sex then there should be a difference of 21 years between the adopted and the adoptee; and (v) there should be actual giving and taking.

 

The conditions for valid acknowledgement are: (i) The acknowledder must be adult and sane; (ii) acknowledgement must not be merely of sonship but of legitimate sonship; (iii) the child so acknowledged must not be known to be child of another; (iv) the acknowledgee must be of an unknown descent; (v) The acknowledgee, if he is of sufficient age to understand the transaction must consent to the fact of acknowledgement; (vi) the acknowledgement must not have been repudiated by the person acknowledged on attaining age and (viii) the acknowledgement must be with the distinct intention of conferring the status of legitimacy.

 

5. Adoption once validly made can not be revoked, similarly a valid acknowledgement is also irrevocable.

 

6. Valid adoption creates mutual rights of the inheritance and other obligation like maintenance etc. Valid acknowledgement also creates similar mutual rights.

 

7. Adoption is based on religions consideration whereas there is no religious motive in case of acknowledgement.

8. In adoption the parentage of the adoptive family is affiliated and the parentage of natural family is renounced, i.e., the child is severed from the natural family and planted to another. However, there is no change of family in acknowledgement.

 

9. Adoption is possible only when father of the child is known and he makes a gift to the adoptive parents. But, acknowledgement is possible only when the paternity of the person acknowledged is not known.

 

10. Adoption has no connection whatsoever between the natural descent of the adoptee and the adoptive father. Acknowledgement relates to the theory of actual descent of the acknowledgee by legitimate means.