Parentage
Parentage is the legal relation of parents to their children. It includes paternity and maternity. These legal relations give rise to certain rights and liabilities as regards to inheritance, guardianship and maintenance. Maternity is a legal relation between mother and the child, which determines the succession or inheritance from mother’s side. Maternity of a child is established in the woman who gives birth to the child, irrespective of her connection with the begetter. In other words, for the establishment of maternity it is immaterial whether the child is an offspring of marriage or zina, but it is established in the woman who gives birth to the child. Paternity is the legal relation between father and the child, which determines the succession or inheritance from father’s side. Paternity of a child can only be established by marriage between its parents. Such a marriage may be either valid (sahih), or irregular (invalid) but it must not be void (batil). The paternity is also established is the child is born after 280 days of its dissolution if mother remains unmarried. The child must not be an offspring of zina.
LEGITIMACY:
Legitimacy is a name of relationship with child, which emerges in result of legal contract of marriage between the adult male and female. The legitimacy and parentage under Muslim law are closely related to marriage. Muslim law insists on the existence of a valid marriage between the begetter and the bearer of the child at the time of its conception. A child born in lawful wedlock is said to be a legitimate child of the spouses. Hence, under Muslim law, direct or indirect marriage between the begetter and the bearer of a child can establish the legitimacy of children. If there is no lawful and direct marriage, then an indirect marriage can be established if:
a. there is cohabitation of the father and the mother; or
b. The father acknowledges the mother as his wife;
c. The father acknowledges the child as his own.
PRESUMPTIONS OF LEGITIMACY:
There are certain presumptions about legitimacy and parentage under Muslim law:
1. A child born during continuance of valid marriage between his mother and any man is legitimate.
2. A child born within six months of the marriage is illegitimate unless the father acknowledges it.
3. The child born after the expiration of six lunar months from the date of marriage is legitimate, unless father disclaims the child by lian;
4. The child born within two years after dissolution of marriage, if mother remained unmarried unless disclaimed by lian. This rule is according to Hanafi law. According to Shafi, the period is 4 years. According to the Shia law, it is 10 months.
ACKNOWLEDGMENT:
Acknowledgment is a declaration ascertaining the paternity where though the marriage exists but the child's paternity is doubtful because of absence of direct proof of marriage. Where the paternity of a child cannot be proved by establishing a marriage between its parents at the time of its conception or birth, such marriage and legitimate descent may be established by acknowledgement. Acknowledgment is either expressed or implied. It may be presumed from the fact that one person has habitually and openly treated another as his legitimate child, son or a daughter. Acknowledgment once made cannot be revoked.
CONDITIONS OF ACKNOWLEDGEMENT:
For a valid acknowledgment, following conditions must be fulfilled:
1. Intention to Confer Legitimacy: A person is not only required to acknowledge a child as his son, but as a legitimate son. Mere casual acknowledgement, not intended to confer the status of legitimacy, will not be a legal acknowledgement.
2. Age of the Acknowledger: The acknowledger must be at least twelve and a half years older than the person acknowledged, as they may be father and son.
3. Child of Others: The child so acknowledged must not be known to be the child of another person.
4. Person Acknowledged Should Confirm: The acknowledged child must believe to be the acknowledger's child and the child must verify or atleast must not repudiate the acknowledgement.
5. Legal Marriage Possible between Parents of the Child Acknowledged: The parents of the child acknowledged must not be in any prohibited relationship either by consanguinity, affinity or fosteration etc. The marriage should be possible at the time when the child was begotten.
6. Competency of the Acknowledger: The acknowledger must possess the legal capacity for entering into a valid contract, that is, he should be adult and sane.
7. Offspring of Zina: The child acknowledged must not be the result of zina, that is, adultery, incest or fornication. He must be the result of lawful wedlock and must not born out of zina:
LEGAL EFFECTS OF ACKNOWLEDGEMENT:
Following are the legal effects of acknowledgment:-
1. The child becomes the legitimate issue and its paternity is established.
2. The child is entitled to inherit the properties of the acknowledger, its mother as well as of other relatives.
3. It also establishes a lawful marriage between the child's mother and the acknowledger. The child's mother gets the status of the wife of the acknowledger and she is also entitled to inherit the properties of her husband (acknowledger).
0 Comments