Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Parentage is the legal relation between a child and the parents. The
mother and father of a child called the parents of the child. These
legal relationships are associated with certain rights and duties, such
as, mutual rights of inheritance, maintenance and guardianship.
(1921) 48 IA 44.
2
(1916) 43 IA 212, 234.
3
1LR (1987) 10 All. 289.
Legitimacy :
(1921) 48 IA 44.
2
(1916) 43 IA 212, 234.
3
1LR (1987) 10 All. 289.
(i) A child born within six month of the marriage is illegitimate
unless the father acknowledges it.
(ii) A child born after six month of the marriage is presumed to
be legitimate, unless the Putative father disclaims it by lian.
(iii) A child born after the dissolution of marriage is legitimate if
born–
These rules have now become outdated because Islamic law of the
presumption of
legitimacy is not applicable in India.
Note:
Unless it can be shown (in both the cases) that the parties to the
marriage had no
access to each other at any time when the person could have been
begotten.
(1921) 48 IA 44.
2
(1916) 43 IA 212, 234.
3
1LR (1987) 10 All. 289.
Difference Between Present Law and Islamic Law :
(i) Under Muslim law, a legitimate child should not only be born
but also be conceived during a valid marriage while under
the Evidence Act, a child is presumed to be legitimate even if
it is born the next day after the marriage unless it is shown
that parties could not have access to each other when it
could have been begotten.
(ii) Under Muslim Law a child born within 2 years (or in 4 years
under Shafie & Maliki (schools) after the dissolution of the
marriage may be legitimate whereas in Evidence Act a child
born after 280 days can never be treated as legitimate.
Where the paternity of a child, i.e. its legitimate descent from its
father, 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.
Acknowledge here means a declaration ascertaining the
paternity where, although the marriage exists but the child's
paternity is doubtful because no direct proof of marriage. An
acknowledge need not be express, it may be presumed from the
fact that one person has habitually and openly treated another as his
legitimate child. The child may be a son or a daughter.
The father of Allahdad Khan, a Sunni, died leaving behind two sons
and three daughters. Allahdad filed a suit to be the eldest son of the
deceased and was therefore entitled to a 2/7 of the share in the
estate. The defence was that the plaintiff was only step-son of father
(1921) 48 IA 44.
2
(1916) 43 IA 212, 234.
3
1LR (1987) 10 All. 289.
having been born of their mother before she married their father,
the deceased. The plaintiff contended that even if he failed to prove
the son of the deceased but he had been acknowledged as the son of
deceased on several occasions. Justice Mahmood, held that the plai
ntiff had established himself as the legitimate son of the deceased
and was, therefore entitled to succeed to him.
3. Child of Others :
The child so acknowledged must not be known to be the child of
another.
4. Person Acknowledged Should Confirm Acknowledgement :
The acknowledged person must believe himself (or herself) to be the
acknowledger's child and the child must verify (or at least must not
repudiate) the acknowledgement.
(1921) 48 IA 44.
2
(1916) 43 IA 212, 234.
3
1LR (1987) 10 All. 289.
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 etc). The marriage
should be possible at the time when the child was begotten.
7. Offspring of Zina :
The child acknowledged must be the result of lawful wedlock,
that must not born either without marriage, adultery, of a void
marriage etc.
(1921) 48 IA 44.
2
(1916) 43 IA 212, 234.
3
1LR (1987) 10 All. 289.