When we compare this provision of the Evidence Act with the rules of legitimacy under Muslim law, we find following points of difference:
(1) Under Muslim law, a legitimate child should not only be born but also be conceived during a valid marriage whereas under the Evidence Act a child born even after a day of marriage may be legitimate.
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(2) Under Muslim law a child born within two years (or even longer periods under Shafie and Maliki schools) of the dissolution of marriage may be legitimate, but under the Evidence Act a child born after two hundred and eighty days of the dissolution of marriage can never be treated as legitimate.
In view of the above mentioned fundamental differences in the two legal systems, it may be argued that application of the rules of legitimacy under the Evidence Act is not justified where marriage is governed by Muslim law.
But courts of law in India have preferred to apply Section 112 of the Indian Evidence Act instead of Muslim law of legitimacy. The Privy Council has applied Section 112 of the Indian Evidence Act, and – not the Muslim law of legitimacy, although the parties were Muslims.
According to Allahabad and Lahore High Courts, Section 112 of the Indian Evidence Act supersedes the Muslim law of legitimacy and is applicable also to Muslims. In A.G. Ramchandran V, Shamsunnim Bivi, the Madras High Court has held that Section 112 of the Evidence Act is very general in its terms and it applies to all persons, including Mohammedans, who may have a personal law of their own relating to legitimacy as there is no provision exempting them from the application of Section 112.
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It may be concluded that being a matter of fact proposition, the legitimacy of a person has rightly been governed by the Evidence Act by the courts of India. In so far as irregular marriage is concerned, although it is not perfectly valid but it is also true that it is not void under Muslim law; neither the consummation is unlawful nor are the issues illegitimate.
It is submitted, therefore, that legitimacy of a child boom out of an irregular marriage may also be governed by the provisions of the Indian Evidence Act. But, where a marriage is void under Muslim law, it is no marriage at all; therefore, legitimacy of a child bom out of a void marriage can never be decided under Section 112 of the Evidence Act.
For example, in Abdul Raheman Kutty v. Aisha Beevi., the wife was found pregnant within a few days of the marriage; the marriage was void under Muslim law because of concealed illicit pregnancy. The court held that as the marriage was void ab initio, the legitimacy of the child bom to the wife cannot be decided under the provision of Evidence Act because this provision applies only where a marriage is valid.
Dukhtar Jahan v. Mohammed Farooq: The marriage of Dukhtar Jahan and Md. Farooq was solemnized on May 11, 1973. A female child was bom to them on December 5, 1973. In October, 1974, Md. Farooq divorced his wife Dukhtar Jahan.
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The divorced wife Dukhtar Jahan then claimed maintenance for herself and her child from former husband Md. Farooq under Section 125 Criminal Procedure Code. Md. Farooq refused to provide maintenance for the child alleging that the child was illegitimate.
The Supreme Court held that the child was a legitimate child and as such was entitled to get maintenance. The court observed that on die sole ground that the child was bom in about seven month’s time after the marriage, it cannot be concluded that the child should have been conceived even before the husband consummated the marriage. In the opinion of the court ‘giving birth to a viable child after 28 weeks duration of pregnancy is not biologically improbable or impossible event.’
The court observed further that the rule of conclusive proof of legitimacy of a child under Section 112 of the Evidence Act “which is based on the dictates of justice has always made the courts to incline towards legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been born to the father and such a legitimating of the child would result in rank injustice to the father.”
Accordingly, the child born to the couple within a time of about seven months from the date of marriage was held a legitimate child of Md. Farooq. As such, the child was entitled to get maintenance from him.