Parentage, legitimacy and acknowledgment of paternity

1. Maternity

Under Sunni law maternity is established by the fact of birth. A child born to a woman is her child for all purposes, including inheritance, even if it is illegitimate. An illegitimate child inherits from its mother and her relations, and they inherit from it. Shia law is stricter: an illegitimate child has no legal relationship with either parent and inherits from neither. Only the Sunni rule is usually examined, but the contrast is worth one line.

2. Paternity and legitimacy

Paternity can be established only through marriage. A child is legitimate if it is begotten by a man and his wife, or by a man and his slave (an obsolete category). A child born of zina (fornication or adultery) has no father in law, and its status cannot be improved by a later marriage of the parents: Muslim law has no doctrine of legitimation by subsequent marriage.

The classical texts fixed the periods within which a child is presumed to be of the marriage:

• Minimum gestation: six months. A child born at least six months after the marriage is presumed legitimate. If born within six months, it is illegitimate unless the father acknowledges it.
• Maximum gestation after dissolution. Hanafi law allowed two years, Shafi and Maliki law four years, and Shia law ten lunar months. A child born within that period after divorce or the husband's death was presumed to be his.

3. Section 116 BSA and its relation to Muslim law

Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly section 112 of the Indian Evidence Act, 1872) provides that the fact that a person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man, unless it is shown that the parties had no access to each other at any time when he could have been begotten.

The section is a rule of evidence that applies to all communities, and the courts have held that it displaces the Muslim law presumptions on the same question. The consequences are:

• The classical two-year and four-year rules after dissolution no longer operate. Only the 280 days in section 116 count.
• A child born during the marriage, even within six months of the wedding, is covered by section 116 and is conclusively legitimate unless non-access is proved. The six-month rule of Muslim law gives way here as well.
• Where section 116 does not apply (for example, a child born more than 280 days after dissolution, or where the marriage itself is disputed), Muslim law, including the doctrine of acknowledgment, still governs.

The Supreme Court applied the presumption to Muslim parties in Dukhtarjahan v. Mohammed Farooq, 1987 INSC 17, (1987) 1 SCC 624, where a child was born about seven months after the marriage and the husband denied paternity in a maintenance case. The Court held that the birth during wedlock attracted the conclusive presumption and that the husband had not proved non-access. On blood and DNA tests, see Goutam Kundu v. State of West Bengal, 1993 INSC 214, (1993) 3 SCC 418 (no roving inquiry; a test cannot be ordered as a matter of course), and Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, 2014 INSC 9, (2014) 2 SCC 576, where a DNA result already on record was allowed to prevail over the presumption. More recently, Ivan Rathinam v. Milan Joseph, 2025 INSC 115, restated that the only way to displace the presumption is proof of non-access, and that a DNA test is not to be ordered unless the party disputing paternity first makes out a strong case of non-access.

4. Acknowledgment of paternity (iqrar)

Where paternity cannot be proved by evidence of a marriage, Muslim law allows it to be established by acknowledgment. A man who acknowledges a child as his own legitimate child confers on it the status of legitimacy, and the acknowledgment also raises a presumption of a lawful marriage between him and the mother. It is a rule of substantive law, and it fixes status rather than only shifting the burden of proof.

The conditions for a valid acknowledgment are:

• Paternity must be uncertain. Acknowledgment operates only where the legitimacy of the child is not proved either way. It cannot override proof that the child was born of zina.
• Ages must permit the relationship. The acknowledger must be at least twelve and a half years older than the child.
• The child must not be known to be another's. A child known to be the offspring of another man cannot be acknowledged.
• A marriage must have been possible. The mother must have been a woman whom the acknowledger could lawfully have married when the child was conceived. If she was then the wife of another, or within prohibited degrees, the acknowledgment fails.
• Intention to confer legitimacy. The man must acknowledge the child as his legitimate child, not merely as his offspring. It may be express or implied from conduct, such as habitual and open treatment of the child as a legitimate son.
• Capacity. The acknowledger must be a major of sound mind, and the child, if of understanding, must not repudiate it.

Once made, a valid acknowledgment is irrevocable. It gives the child the right to inherit from the acknowledger, and the mother, if the marriage is presumed, becomes entitled to inherit as his widow.

5. Habibur Rahman v. Altaf Ali (1922)

In Habibur Rahman Chowdhury v. Altaf Ali Chowdhury (1922), the Privy Council stated the limits of the doctrine. Lord Dunedin explained that acknowledgment is a means of establishing a marriage that is not proved, and so the legitimacy of the child; it is not a way of legitimising a child known to be illegitimate. Where the marriage is disproved, or the child is shown to have been born out of wedlock, no acknowledgment can make it legitimate. The decision confirms that Muslim law has no adoption and no legitimation of children whose illegitimacy is established.

The Supreme Court followed the same approach in Mohd. Amin v. Vakil Ahmed, 1952 INSC 44, AIR 1952 SC 358, holding that a presumption of marriage from acknowledgment arises only where the marriage was possible and not disproved, and that mere treatment of a person as one's child, without acknowledging him as a legitimate child, is not enough.

6. Problem

A married B in March. A son, C, was born in July of the same year. A always treated C as his legitimate son. On A's death, his brothers claim C is illegitimate and cannot inherit. Advise C.

Issue. Whether C, born four months after the marriage, is the legitimate son of A.

Law. Under classical Muslim law a child born within six months of marriage is illegitimate unless acknowledged. Section 116 BSA, however, makes birth during a valid marriage conclusive proof of legitimacy unless non-access is shown. Acknowledgment is in any case available where paternity is uncertain (Habibur Rahman).

Application. C was born during the continuance of a valid marriage. Section 116 applies, and the brothers can rebut it only by proving that A and B had no access to each other when C could have been conceived, which they cannot do on these facts. Independently, A's consistent treatment of C as his legitimate son is an acknowledgment by conduct.

Conclusion. C is A's legitimate son and inherits as such.

How this is examined

Usually a 6-mark short note: “Acknowledgment of paternity” or “Legitimacy under Muslim law.” State the maternity/paternity distinction, list the conditions of a valid acknowledgment, cite Habibur Rahman, and end with the effect of section 116 BSA (old section 112 of the Evidence Act). A 10-mark essay adds the gestation periods and the problem above.