Acknowledgement of Legitimacy of a Child (who may be a male or female) and the marriage of his (or her) mother with the acknowledger will be established, unless the marriage is disproved (Syed Habibur v. Syed Altaf, 83 Bom. L.R. 636, PC.).
The acknowledgement may thus be taken advantage of by the child or by the child’s mother.
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Whether Revocable:
ADVERTISEMENTS:
It is well-settled that an acknowledgement of legitimacy, once made, cannot be revoked later on. (Ashrufood v. Hyder Hossein, 1866 11 M.I.A. 94)
Whether the Acknowledged Child can repudiate:
According to Mulla, in order that there should be a valid acknowledgement, it should not have been repudiated by the person acknowledged.
If the person acknowledged has attained an age when he can understand the transaction, he can repudiate the acknowledgement.
(A reference may be made to Habibur Rehman v. Altaf Ali, 1921, 48 Cal. 856.)
Problems:
ADVERTISEMENTS:
1. Muhammad first marries Mariyam and then marries her sister’s daughter Chandbibi, within a week of her getting a divorce from her former husband, Chandbibi gives birth to a child after one month from her marriage with Muhammad. Discuss the validity of Chandbibi’s second marriage and the paternity of her child.
Ans:
Chandbibi’s second marriage is irregular. Moreover, according to Muhammadan law, a child born within less than six months after marriage is illegitimate. The child born after one month from Chandbibi’s marriage with Muhammad is, therefore, illegitimate. (See Musammat Kaniza v. Hasan, 1 Luck. 71)
2. Ibrahim, who was staying with Fatma since 1947, died in 1950, leaving some property and legitimate children. Yusuf, the son of Fatma and aged fifteen years, was acknowledged by Ibrahim as his son. Fatma was a married woman, and though living with Ibrahim, was not divorced by her husband, who was still alive. Yusuf claimed a share along with the heirs of Ibrahim. Discuss the merits of his claim.
Ans:
Fatma is like Ibrahim’s kept mistress. Therefore, the acknowledgement by Ibrahim of Yusuf as his son is not valid, and Yusuf is not entitled to claim a share along with the heirs of Ibrahim.
Adoption not Recognised in Muslim Law:
ADVERTISEMENTS:
There is nothing like adoption in Muhammadan law. Even a Hindu convert to Islam cannot adopt. Thus B, a Hindu, gave up his faith of Hinduism and embraced Islam. As he had no son, he adopted a son A. Thereafter, В died. A, as the adopted son of B, claimed full right of inheritance. Here, A cannot succeed, because the Muslim law does not recognise the doctrine of adoption at all.
Presumption of Legitimacy under S. 112 of the Indian Evidence Act:
Section 112 of the Indian Evidence Act reads as follows:
“The fact that any person was born:
(i) During the continuance of a valid marriage between his mother and any man; or
(ii) Within 280 days after its dissolution (the mother remaining unmarried), shall be conclusive proof that he is the legitimate son of that man, unless it be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”
The presumption as to paternity in this section only arises in connection with the offspring of a married couple. No matter how soon the birth occurs after the marriage, the presumption of legitimacy is conclusive. However, if it is shown that the husband of the mother did not have access to her; the presumption of section 112 will not apply.
The presumption contemplated by section 112 of the Indian Evidence Act is a conclusive presumption of law, which can be displaced only by proof of non-access between the parties to the marriage at a time when, according to the ordinary course of nature, the husband could have been the father of the child.
The principle of this section can be rebutted when the mother of the child is not a wife, but a mistress.