The rules of presumption of legitimacy under the Muslim Law are as follows: If a child is born:

1. Within 6 months of marriage

Child is illegitimate unless acknowledged by the father.

2. After 6 months of marriage

ADVERTISEMENTS:

Child is legitimate unless disclaimed by the father.

3. After termination of marriage

Child is legitimate, if born, within 2 years in

Hanafi, within 4 years in Shafi, within 10 months in Shias

ADVERTISEMENTS:

Legitimacy under Indian evidence act

The Rules of presumption of legitimacy under Section 112 of the Evidence Act reads as under:

The fact that any person was born:

(i) During the continuance of a valid marriage between his mother and any man, or

ADVERTISEMENTS:

(ii) Within 280 days after its dissolution.

The mother remaining unmarried shall be conclusive proof that he is the legitimate son of that man, unless it is shown that the parties to the marriage had no access to each other at any time when he could have begotten.

The question whether Section 112 of the Evidence Act supersede the rules of Muslim Law was left open.

Conditions of acknowledgement

ADVERTISEMENTS:

1. There must not be any incapacity for entering into a valid contract of marriage.

2. Child must not be offspring of zina (illicit relationship).

3. The presumption of legitimacy, as discussed must have been existing.

4. The acknowledgement may be either express or implied.

ADVERTISEMENTS:

Case laws

1. A person must acknowledge that child is his son. It must be shown that person making the acknowledgement intended to confer the status of legitimacy on child – Mehbubunnissa Begum vs. Mohd Yusuf, AIR 1950 Hyd. 41.

2. The legitimacy is the status, which results from certain facts, while legitimation is a proceeding, which creates the status of legitimacy, which did not exist before. There is no legitimation in Muslim Law. A child to be legitimate must be conceived during the marriage of man and his wife. Any other child is offspring of zina, i.e., illicit connection and cannot become legitimate even by subsequent marriage of his parents – Habit Rehman vs. Altaf Ali, AIR 1922 P.C. 159.

3. A child will be the product of zina and cannot be legitimated by acknowledgement where it is proved that mother was the married wife of another at the date of conception – Rashid Ahmad vs. Anissa Khatun, AIR 1932 P.C. 25.