Legitimacy Under Muslim Law
Legitimacy Under Muslim Law
ACKNOWLEDGMENT AND
ADOPTION UNDER DIFFERENT
PERSONAL LAWS
SUBMITTED BY
HANERI
LL.M (S/F)
3RD SEM
ROLL NO. 21MLW1008
SYNOPSIS
1. Legitimacy under Muslim Law
• Maternity
• Paternity
• Legitimacy
• Illegitimacy
• Section 112 of Indian Evidence Act 1872
• Children of Muta Marriage
• Difference between Evidence Act and Muslim Law
• Rights of illegitimate child under Muslim Law
- Right of maintenance
- Right of inheritance
synopsis
- Right of guardianship
2. Legitimacy under Christian law
• Rights of illegitimate child under Christian law
- right of maintenance
- right of inheritance
- right if guardianship
3. ADOPTION under Muslim Law
The Shariat Act, 1937
4. Adoption under Christian Law
5. Adoption under Parsi Law
6. Adoption under Hindu Law
Rules under old Hindu Law
Statutory enactments
synopsis
Hindu Adoption and Maintenance Act, 1956
- Personal Law (Amendment) Act, 2010
- Widow’s Right to Adopt
- Adoption by proxy
Juvenile Justice (Care And Protection of Children) Act, 2015
7. ACKNOWLEDGMENT under Muslim Law
• Legal implications
For the child
For the mother
For the father
8. Acknowledgment under Parsi and Christian Law
9. Difference between Adoption and Acknowledgment
LEGITIMACY UNDER MUSLIM LAW
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 his parents. If legitimacy of a child is in doubt but
nor disproved, acknowledgement whether express or implied of its
father confers upon it is the status of legitimacy. If a child is proved to
be illegitimate , no acknowledgement can legitimise it. Hence,
acknowledgment is a mere declaration of the child’s legitimacy- a
status which it has always had since birth.
Legitimation is a process to confer legitimacy upon one who was never
legitimate child. Legitimation is unknown to the Islamic law.
ILLEGITIMACY
Under Muslim law, an illegitimate child is a filius nullius
owing no nasab to either parent. The Shias are of the view that
an illegitimate child i.e a child born outside the lawful wedlock
is related neither to the father nor to the mother. The Hanafis
do not take the same stand and adopt the view that an
illegitimate child for certain purposes, such as for weaning and
nourishment, is related to the mother. For those purposes, the
Hanafi law confers some rights on its mother.
Muslim law does not confers any obligation of maintenance of
illegitimate children on either parents though the Hanafis
recognize the obligation of nurture till the child attains the age
of seven .The Shias do not recognize even this obligation.
SECTION 112 OF INDIAN EVIDENCE ACT,
1872
Section 112 of Indian Evidence Act, 1872 lays down the
provision regarding birth during marriage is the conclusive
proof of legitimacy.
If a child is born during the continuance of a valid marriage
between his mother and any man or within 280 days after its
dissolution and the mother remaining unmarried, shall be the
conclusive proof that he is the legitimate son of that man
unless the parties to the marriage shows that they had no
access to each other at any time when he could have been
begotten.
Now, the question arises does section 112 supersede the
rules of presumption of Muslim law?
• In Sibt.Mohhamad v Mohamed,1926 AIR 589, the Allahabad
High Court has held that the section 112 of IEA, 1872
supersedes the rule of Muslim Law. The Lahore High Court
took the same view in Rahim Bibi v Chiragdin, 1931 Lah 97.
The Shariat Act, 1937 applies upon a Muslim and as per section 2
the Muslim personal law will not apply upon matters of adoption.
Under section 3 the concerned Muslim, if he is competent to
contract and he resides in the territory where this Act applies then
he may make a declaration that he desires to be governed by the
Muslim personal law even in reference to the matters of adoption
also.
Then the Muslim personal law related to adoption will apply upon
him as well as his minor children who were minors at the time of
declaration and also upon subsequent descendants of these minor
children and thus thereafter adoption will not be permissible to
them as Muslim personal law does not permit adoption.
Sec 3
The Christians can adopt the child under Juvenile Justice [Care
and Protection of Children] Act, 2015 and Central Adoption
Resource Authority Rules.
The person adopting has the capacity, and also the right to take
in adoption;
The person giving in adoption has the capacity to do so;
The person adopted is capable of being taken in adoption, and
The adoption is made in compliance with the other conditions
mentioned in Chapter II of the Act.
Any Hindu male of sound mind and major can adopt a son or
daughter. If he is married then he has to take consent of his
wife. No such consent is needed if the wife is of unsound mind
or has renounced the world.
Any married female can adopt with the consent of her husband
and no such consent is required if he suffers from the
disabilities mentioned under the Act.
Capacity to give in Adoption:
Section 9
The father or the mother, if alive, shall have equal rights to
give a son or daughter in adoption.
Where both the parents are dead or are legally incompetent to
give in adoption, then in that case, the guardian of the child
may give the child in adoption with the previous permission of
the Court, to any person including the guardian himself.
The court, before giving such permission, has to consider the
following:
1. The adoption is for the welfare of the child,
2. The child’s wishes have been ascertained, and
3. There is no financial consideration in the transaction.
Who can be adopted (sec. 10)
A person who has a Hindu son, son’s son or son’s son’s son,
either by blood or adoption cannot adopt a son.
Likewise, a person who has a Hindu daughter or son’s
daughter cannot adopt a daughter.
Adopter and adoptee belongs to opposite gender, the Act
requires an age difference of 21 years.
Effects of adoption: sec 12
Upon adoption, the adoptive child severe all ties with the natural
family and becomes part and parcel of the adoptive family w.e.f.
the date of adoption.
All rights and obligations of natural born child falls upon the
adopted child.
3 exceptions to above rule:
1. The child cannot marry any person whom s/he could not have
married had s/he not been taken in adoption;
2. Any property vesting in the adopted child before adoption
continues to vest in him subject to the obligation, if any;
3. The adoptive child cannot divest any person of any estate which
vested in him or her before adoption.
Section 15
It states that adoption once made cannot be cancelled by the
parents, nor can the adopted child renounce is/her status and return
to the family of his/her birth.
Prior to Personal Laws
(Amendment) Act, 2010
A female adult of sound mind could adopt a child under the
following events:
1. Unmarried;
2. Divorced;
3. Widowed;
4. Her husband suffers from certain disabilities like he has:
Ceased to be Hindu
Has renounced the world
Has been declared to be of unsound mind by the court
Now the female’s right to adopt has been brought at parity with
the male’s right. Any female of 18 years or more now can
adopt a child to herself and in her own right, provided she has
no living son or daughter or son’s daughter at the time of
adoption.
Court opined that the adoption took place in 1990 and the
adoptive mother remarried in 1994 and hence this contention is
not maintainable. Hence the adoption is valid and the name of
adoptive mother can be written on the passport of the adopted
child.
JUVENILE JUSTICE (CARE AND
PROTECTION OF CHILDREN) ACT, 2015
ADOPTION ACKNOWLEDGMENT
An adoption is a son of another Itproceeds on the basis of actual
person. paternity. If the son is proved to be
other’s son acknowledgment is
ineffective.
Itis established by a gift from the
Itis possible only when the paternity
natural parents to the adoptive
of the child is not known and at the
parents .
same time child is not proved to be a
child of another person.
Parentage of the adoptive family is No such transportation is possible in
affiliated after renouncing the acknowledgment.
natural family. Itrelates to the theory of actual
Ithas no connection between the descent of the acknowledge by
natural descent of the adoptee and legitimate means .
adoptive father. There is no such religious or spiritual
The motive of adoption may be motive.
religious and spiritual.
THANK YOU!!!