UNIT –II
Parentage & Legitimacy
✓Introduction
✓Parentage
✓ Maternity
✓Paternity
✓Legitimacy
✓Difference between Legitimacy and Legitimation
✓Present law on Legitimacy
• Legal relation between child and
parents.
• Involves certain rights and obligations
with respect to maintenance,
Parentage guardianship and inheritance.
Methods :
➢ By Birth
➢ By Acknowledgement
Maternity •Legal relation between mother
& and child is called Maternity.
Paternity • Relation between Father and the
child is Paternity.
Legitimacy
• Legitimacy is the status which results from certain facts.
• A child of a valid marriage is treated as legitimate
provided that at the time when its conception must have
taken place or, if later, at the time of the celebration of the
marriage either parent, or both, reasonably and honestly
believed that their marriage was valid.
Special rules regarding presumption of Legitimacy
➢ A Child is born within less than 6 Months after the marriage is
illegitimate, unless the father acknowledges it.
➢ A Child born after 6 Months from the date of marriage is
presumed to be legitimate, unless the father disclaims it by
lian. ( Adultery)
➢ A Child born after the dissolution of marriage is legitimate:
a) Under Shia law, if born within 10 lunar months.
b) If born within 2 lunar years.
c) Under Shafai and Malliki with in 4 lunar years.
Section 112 of Indian Evidence Act
•A child born during the subsistence of a valid
marriage born even after one day of marriage, even
though conceived before marriage, will be a
legitimate child.
•A child born within 280 days of the dissolution of
marriage either by death or divorce will be
presumed to be the child of his father provided the
mother remained unmarried.
Cond…
➢Under Indian Evidence Act the case will be governed
by Section 114 of EA
➢section 114 reads as follows: " The Court may presume
the existence of any fact which it thinks likely to have
happened, regard being had to the common course of
natural events, human conduct and public and private
business, in their relation to the facts of the particular
case”.
➢ Asraf Ali v. Asrad Ali - The Court declined to follow
a Child born 19 months after the date of divorce as
legitimate as it against to the law of nature.
Whether the Law of Evidence supersedes the
rule of Pure Muslim Law ?
➢ A G Ramachandran v. Shamsunnisa Bibi
The Court held Section 112 of the Indian Evidence
Act supersedes the pure Muslim Law as there is no
provision exempting them from the application of
Sec 112 of the Evidence Act.
Legitimacy and Legitimation
❖ Legitimacy is the fact of a Child being legitimate under the
Muslim Law. It is the status of a Child resulting from certain
facts about the relationship between the parents.
❖ Legitimation is the Process which creates a status which does
not exists before.
Eg : Adoption under Hindu law
ACKNOWLEDGEMENT OF PATERNITY
➢ Paternity derived from a Latin word "Paternitas”
➢ According to Black‘s Law Dictionary, paternity
means the identity of the father of a child both
legally and biologically.
➢ Law applies only when there is uncertainty and
paternity of the child has been proved from any
other person, the child is not a result of any Zina
(i.e. adultery, or illicit relation)
Acknowledgement
❖ Acknowledgement means to accept or admit the
existence of a thing or a fact.
❖ Paternity mean the state of being someone’s father.
❖ Acknowledgement of paternity means accepting the fact
of being someone's father.
❖ Mohammad Alladad Khan v. Mohammad Ismail Khan
Conditions for Valid Acknowledgement
➢Acknowledgement must not be of illegitimate child.
➢Paternity of the child must be ascertained.
➢Age Difference.
➢Capacity for Acknowledgement.
➢Acknowledgement of legitimacy of the Child.
➢No valid acknowledgement if the child is born of a Zina
➢No revocation of acknowledgement.
➢Burden of proof of acknowledgement.
Effects of Acknowledgement
•The child so acknowledged becomes the legitimate
issue of acknowledger and its paternity is
established.
•It also raises a presumption of marriage between the
acknowledger and the mother of the child
Acknowledgement.
•Mutual rights of inheritance exists between
acknowledger, the mother of the child
Acknowledgement and child also
ADOPTION ACKNOWLEDGEMENT
➢ An adoptee is the son of ➢ It proceeds on the basis of
another person actual paternity. If the son
➢ It is established by gift is proved to be other’s
from the natural parents to acknowledgment is
adoptive parents ineffective.
➢ Parentage of the adoptive ➢ It is possible only when
family is affiliated after the paternity of the child
renouncing the is not known and at the
same time child of
another person.
➢ No such transplantation
is possible in
acknowledgement.
