ACKNOWLEDGEMENT - MUSLIM LAW

  

Adoption technically speaking is not allowed in Islam though it is no where prohibited.

Surah Al- Ahzab  [33:4-6]

Allah has not made for a man two hearts in his interior. And he has not made your wives whom you declare unlawful your mothers. And he has not made your adopted sons your [true] sons. That is [merely] your saying by your mouths, but Allah says the truth, and He guides to the [right] way.

What is intended literally is that there should not be an erection of a false relationship.

The question whether Muslim can adopt any person and is it legally permissible to do so was taken by a Division Bench of Allahabad High Court  in a decision by (M. Katju and Prakash Krishna, JJ.) as he then was in Mohd. Atiq Khan vs Union Of India (UOI) And Ors, 2003. 

The Bench relied on the Full Bench decision of the Court rendered by Justice Mahmood in Muhammad Allahabad Khan v. Muhammad Ismail Khan, (1888) ILR 10 All 290, and held that there is no question of adoption in Muslim Law though  doctrine of acknowledgement of paternity was closest to it (para 6).

Muslim law recognises the institution of “ikrar” or “acknowledgement”. 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.

PARENTAGE

Merriam Webster defines Parentage as "descent from parents"

Maternity is the legal relationship between the mother and the child.

Paternity is the legal relationship between the father and the child.

PURPOSE OF PARENTAGE

Once a parentage is established that parent will have all the rights and responsibilities of a parent. 

These legal rights and privileges are:

• Financial support from both parents;

• Legal documentation identifying both parents;

• Having the names of both parents on the child’s birth certificate;

ESTABLISHMENT OF MATERNITY

Sunni Law: ‘Maternity’ of a child is established in the woman who gives birth to the child.

It does not matter whether the birth was the result of a valid marriage or adultery (Zina).

Shia Law:  Birth alone is not sufficient to establish ‘maternity’. A lawful marriage must also to be proved which resulted in the birth.

Therefore, under Sunni Law an illegitimate child has his maternity in the woman who gave birth and the child is entitled to inherit from the mother alone.

But under Shia Law an illegitimate child has neither maternity in a woman who gave birth nor paternity in the father. Therefore, in Shia Law the legitimate child can inherit neither from father nor mother.

ESTABLISHMENT OF PATERNITY

Paternity of a child can only be established by marriage between his or her parents. The marriage may be valid or be irregular. Paternity is established in the husband of the mother of a child. 

Paternity established in a person said to be a father by proof or legal presumption that the child was begotten by him on a woman who was at the time of conception his lawful wife and was in good faith and reasonably believed by him to be such or whose marriage being valid.

ACKNOWLEDGEMENT OF PATERNITY

 “Ikrar” or “Acknowledgement”.

The Court in Mohammed Allahdad Khan v Mohammed Ismail Khan (1888), through Justice Mehmood had 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.

Hence, the concept of ‘acknowledgement’, tends to establish paternity of the child whose paternity is previously unestablished or “not proved”.

BASIC PRINCIPLES OF ACKNOWLEDGEMENT 

Faiz Badruddin Tyabji in his "Muslim Law" Fourth Edition has the following to say on the question of acknowledgment of paternity in Section 225:

The paternity of a child is presumed in any man who acknowledges it with the intention of admitting that it has been established: provided that each of the following five conditions are complied with: viz., that

 (1) the paternity of the child is not established in anyone else;

 (2) the ages of the parties are such that they may be father and child;

 (3) the child, if it is of an age to confirm or acquiesce in the acknowledgment, does so;

 (4) the man could at the time when the child was begotten, have lawfully been the husband of its mother, which implies 

     (a) that it has not been proved that the child is the offspring of illicit inter- course; and 

     (b) that the alleged marriage has not been disproved; and 

 (5) the acknowledgment is not merely of sonship, but of legitimate sonship (the fact, however, that the acknowledgement was of legitimacy as well as of sonship, may be inferred from circumstances justifying that inference).

   Dr. Thahir Mohammed in his Treatise on the Muslim Law" second edition, states as follows on acknowledgment:

Muslim Law is prepared to honour the acknowledgment of a child by his begetter strictly subject to the following conditions: 

I. The child acknowledged must not knowingly be the child of another man.

II. There must not be, knowingly illegitimate by law.

III. There must be a possibility of matrimonial relationship, recognisable by law between the acknowledger and child's mother.

IV. The child must not be known to others, as child born out of wedlock (whom Muslim Law regards as wailed-uz-zina) and hence legitimate.

V. The acknowledged child must not have disclaimed the paternal relationship with the acknowledger, and VI. having regard to their age, the acknowledger and the child should be acceptable as father and child.

Therefore, we can conclude that the Essentials for Acknowledgement are as follows:

1. Manner of Acknowledgement

• It is not necessary that an acknowledgement should be expressed, it may also be implied.
• The acknowledgement may be of a son or daughter, but it must be made by the father only.
• The acknowledgement of the child must not be casual but with the intention of legitimate sonship.

In Muhammad Ali Khan vs Muhammad Ibrahim Khan 1929 PC 

The Court while referring to  Khajah Hidayut Oollah v. Rai Jan Khanum (1844) held that:

"Where a child has been born to a father, ...not a mere casual concubinage, but a more permanent connection... the presumption is in favour of such marriage having taken place."

  Thus, the court held that the  father made the acknowledgement of the child in a casual manner thus the  act of the father is not sufficient to confer the status of legitimacy. 

2. Age of the Acknowledger: 

The age of the parties must be such that it is possible that they may be father and son. The acknowledger must be at least 12.5 years older than the person acknowledged. 

3. The child of others: 

The child who is acknowledged must not be known as a child of another. 

Only when by reason of time or circumstances the question of marriage is in a state of being 'unproved', the question of acknowledgment arises, and in dealing with that question satisfactorily, evidence has to be led to clear acknowledgment.

4. Offspring of Zina:

An offspring of Zina/ fornication is one who is born either: 

• without marriage or
• mother who was the married wife of another or 
• of void marriage.

The child must not be known to others, as child born out of wedlock (whom Muslim Law regards as wailed-uz-zina). Thus, acknowledgement must be of the child who is offspring of a legal marriage. 

5. Legal marriage possible between parents of the child acknowledged:

The acknowledger and the mother of the child must have been lawfully joined in marriage at the time when the child was begotten. 

It is essential to show that lawful marriage is possible between the acknowledger and the mother of the child. 

The doctrine of acknowledgment is based on the assumption of a lawful union between the parents of the Acknowledged child. The doctrine however, is not applicable where the lawful union between the Parents of the child is not possible as in the case of incestuous intercourse or an adulterous connection. 

The doctrine is also not applicable where the marriage necessary to render a child legitimate if disproved.- para 4- Mohamed Khan Sahib vs Ali Khan Sahib And Anr. on 4 November, 1980.

In Syed Ameer Ali's "Mohammedan Law", Fourth Edition, Vol.11 on the doctrine of acknowledgment the learned author states as follows:

But if a man were to cohabit with a woman (not by way of a casual relationship), and to have issue by her and were to acknowledge such children as his 'legitimate' offspring, such acknowledgment would supply any defect in the evidence of marriage. The acknowledgment of legitimacy proceeds upon the basis of a prior lawful relationship between the parents. 

6. Person acknowledged should confirm acknowledgement: 

The child, if it is of an age to confirm or acquiesce in the acknowledgment, does so.

In other words, the acknowledged, if he has attained discretion, does not repudiate the acknowledgment.

7. Once granted cannot be revoked:

 Acknowledgement once granted cannot be revoked.

(Asharfod Dowlah vs Hyder Hussain, (1866) II MIA 94)

COMPETENCY OF ACKNOWLEDGER

Acknowledgement of paternity can be made by a male person ‘acknowledger’. While the child who is to be acknowledged is called the ‘acknowledged’.

        1. The acknowledger (man) must be major.

 

        2.  He must be of sound mind.

 

        3.  The acknowledger must be competent to make a contract.

   4. The age of the acknowledger must be such that he can be a father to the acknowledged.

   5. The man must carry the intention of acknowledging the child as a legitimate one.

COMPETENCY OF ACKNOWLEDGED 

1. The child of others: 

The child who is acknowledged must not be known as a child of another. 

Asaf A.A. Fyzee in his book on "Mohammedan Law" second edition has stated as follows:

Where a paternity of a child is not known or established beyond a doubt.... The rule as to acknowledgement of legitimacy arises only if the paternity of the child is not certain.

To put it into the words of Indian Evidence Act, the paternity of the child must be in “not proved” stage.

2. Age of the Acknowledger: 

The age of the parties must be such that it is possible that they may be father and son. According to Bailie, the acknowledger must be at least 12.5 years older than the person acknowledged. 

3. Not an Offspring of Zina:

An offspring of Zina is one who is born either: 

• without marriage or
• mother who was the married wife of another or
•  of void marriage

cannot be acknowledged.

In Mohd. Amin v. Wakil Ahmad, Court held that,

The presumption of marriage arises in Mohammedan Law in the absence of direct proof or a prolonged and continuous cohabitation as husband and wife.

The Privy Council has further pointed out that when a man and a woman have cohabited continuously for a number of years, the law presumes in favour of marriage and against concubinage and an acknowledgment involves the assertion that the father was married to the acknowledgee's (acknowledged) mother. 

4. Person acknowledged should confirm acknowledgement:

The child, if adult, must confirm the acknowledgement.

Rules for Presumption of Legitimacy under Muslim Law

The Muslim law has broadly categorised three rules for the presumption of legitimacy of a child by which all Muslims are governed. Both the schools of Islamic law; Shia and Sunni follow the same rules and the rules are as follows: 

1. Where a child is born within less than six months (6 months) after the marriage is considered as an illegitimate child unless the father acknowledges it.

2. Where a child is born after six months from the date of marriage is presumed to be a legitimate child, unless the putative father disclaims it by lian.

3. Where a child is born after dissolution of marriage is considered to be legitimate under the following schools as follows:

4. Under Shia Law, if the child is born within 10 lunar months,

5. Under Hanafi law, if the child is born within 2 lunar years,Under Shafi and Maliki Law, if child is born within 4 lunar years.

It is to be understood that these presumptions are dated and now India's stand on legitimacy is governed by the Indian Evidence Act, 1872.

Section 112 of The Indian Evidence Act, 1872 states:

Birth during marriage, conclusive proof of legitimacy.—The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

In the case of A.G Ramchandran vs Shamsunnisa Bibi AIR 1977 Mad. 182  it was held that the Evidence Act is a very general act and is applicable on all religions including Mohammedans (para 5). 

In the case of Sibt Mohammad vs Mohammad See (1926) 48 All. 625 also it was held that the Evidence Act supersedes Muslim law (para 5 and 7)

LEGAL INCIDENTS OF ACKNOWLEDGEMENT

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.

1. Effect of Natural parents- Acknowledgement produces all the legal effects of natural paternity. 

2. Sonship- It confers status of legitimate sonship. 

In Roshnabhai v. Suleman, A.I.R. 1944 Bom. 213, it has been held as follows:

In respect of acknowledgement of a son, it is further clear that the acknowledgment must be as of a legitimate son and mere acknowledgment of paternity is not sufficient to raise a presumption of legitimacy or marriage. 

It is further clear that in the event of disproof of marriage no amount of acknowledgment can make presumption override the fact and persuade the court to decide the matter on the presumption

In Macnaughten's "Mohammedan Law" it is observed as follows:

the Mohammedan lawyers carry this disinclination (that is against bastardizing) much further; they consider it the legitimate of reasoning to infer the existence of a marriage from the proof of cohabitation... none but children who are in the strictest sense of the word spurious are considered incapable of inheriting the estate of their putative father... whereby any possibility of a marriage may be presumed, the law will rather do so then bastardize the issue and whether a marriage is simply voidable or void ab initio the offspring of it will be deemed legitimate.

3. Right to inherit- There is a right to succeed from the acknowledger.

4. Status of legally wedded wife- In the case of wife, which means the mother of acknowledged son, it has the effect of giving her the status of legal wife. 

No doubt as has been held in Fitma Bidnty v. Administrator General, Zancibar, A.I.R. 1949 P.C. 254: (1949)2 M.L.J. 484 mere acknowledgment of paternity will in no way establish anything but a casual union and more is required to show the existence of the marriage bond.

5. Wife’s right of maintenance and Inheritance- As the status of a legally wedded wife is achieved the right of maintenance and inheritance is also granted.

Conclusion

Holy Quran recognises Allah as the Most Merciful.

Anas ibn Malik (may Allah be pleased with him), the servant of the Prophet, had another recollection:

I never saw anyone who has more compassionate towards children than Allah’s Messenger (peace and blessing be upon him).

The Hadith narrated by Usamah ibn Zaid (may Allah be pleased with him) shows this humane aspect of the Prophet’s personality:

Allah’s Messenger used to put me on (one of) his thighs and put Al-Hasan ibn `Ali on his other thigh, and then embrace us and say, “O Allah! Please be merciful to them, as I am merciful to them.” (Al-Bukhari)

Thus, recognising a child as his own and showering him virtue and love, will certainly be opening doors of Jannat.