LEGITIMACY OF CHILDREN UNDER MUSLIM LAW

Muslim law does not recognize legitimation and clearly illegitimate children can not be
conferred the status of legitimacy.
Children born within the lawful wedlock - LEGITIMATE
Children born outside the wedlock
- ILLEGITIMATE ( is filius nullius
i.e. a son of nobody. Judicial decisions established - guardianship of such child
vests in its mother.)
CASE
HABIBUR REHMAN V. ALTAF ALI ( 1921 ) 48 IA 114.
A son to be legitimate must be the offspring of a man and his wife. The term WIFE
necessarily cannotes marriage and direct proof of marriage may be available but if it is
not, indirect proof is sufficient.

So marriage may be established byDirect proof of marriage or;

Indirect proof
i.
by the presumption of prolonged and continuous cohabitation
or
ii.
by ACKNOWLEDGEMENT of the child as ones legitimate
child.

DOCTRINE OF ACKNOWLEDGEMENT
Applicable where paternity not known or not established beyond doubt
not proved that child is offspring of illicit intercourse( zina)
circumstances are such that marriage between acknowledger and mother of child
is not an impossibility.
This is known as the DOCTRINE OF ACKNOWLEDGEMENT
may be express or implied
Valid acknowledgement - IRREVOCABLE
Gives right of inheritance
REQUISITES FOR VALID ACKNOWLEDGEMENT

Paternity - doubtful
Must acknowledge as his legitimate child not just his child.
Age should be such that the acknowledger and the child must appear to be father
and the child.
Must not be offspring of illicit intercourse.
Paternity must not be established in anyone else.

Acknowledged person must not repudiate the acknowledgement.

ADOPTION
Muslim law does not recognize Adoption
before the SHARIAT ACT,1937 by custom allowed.
In Md. Ismail v. Noor-ud-din, AIR 1986 J & K 14.
HELD: In J&K adoption is recognized under custom.

Hindu law Motive may be i.

Sacramental or
ii.
Secular
in shastric Hindu law - sacramental( religious)
adopted son must be reflection of a son
this prevented adoption of orphans and illegitimate children
daughters could not be adopted
not more than one adoption
a child of a mother with whom one could not marry not allowed to be
adopted
so daughters and sisters son could not be adopted.
In Srinivas v. Narayan, AIR 1954 SC 379.
The Court observed: this was the reason for the rule that when widow
adopted a son it was always deemed to be the son of her deceased
husband. The principle is responsible for the DOCTRINE OF
RELATING BACK
Secular Motives
Mans desire for the celebration of his name
For perpetuation of his lineage
For providing security in the old age
Dying in satisfaction that one has left an heir to ones property
In Modern law Purpose of adoption is to
Rescue the helpless, unwanted, destitute or the orphan child, provide it
with parents and a home.
Shripad v. Dattaram AIR 1974 SC 878.
Whatever may be the motive, the court need not enquire into them.
Now the Hindu Adoption & Maintenance Act, 1956 made adoption a secular
institution - even a religious ceremony is not required.
Some important facts
An adoption validly made can not be cancelled by thei.
Adopter
ii.
Natural Guardians or
iii.
Any other person

Nand v. Bhupindra AIR 1966 Cal. 181.

An adopted child can not renounce his adoptive parents and return back to
family of his birth( S. 15)
An adopted child cannot again be given in adoption ( S.10 ( ii) )
Agreement not to adopt is void being against public policy.
In Kartar Singh v. Surjan Singh AIR 1974 SC 2102.
Held: under the Act even when an adoption is made in consideration of
some pecuniary or proprietary benefit the adoption is valid despite the
fact that such an agreement is void.

S.6.
capacity
and right i. to take
ii. to give
iii being
takens
iv.other
conditions.

S.7.
capacity of
a Hindu
male to
take in
adoption
i. major
ii sound
mind
iii. can take
son or
daughter
iv if wife
aliveconsent
mandatory
v. more
than one
wife
consent of
all
necessary
vi consent
not
requiredwhere wife
hasi.
completely
and finally
renounced
the world
or
ii.
converted
or
iii. declared
by a
competent
court to be
of
unsound
mind
he may be
a bachelar,
widower
or divorcee

REQUISITES OF A VALID ADOPTION

S.8.capacity of a
Hindu female
to take in
adoption
i.major
ii. sound mind
iii. unmarried
iv.divorcee
v. if married
whose husband
is
i. dead or
ii. renounced
the world or
iii. converted or
iv. declared
unsound mind
by a competent
court.
But now the law
has been
amended by the
Personal Laws
(Amendment)
Act,2010.got
presidents
assent on31st
Aug,2010and
notified on
1stSept.2010.
Now any female
who is
soundmind and
major has the
capacity to adopt
a son or daughter
in adoption but
consent of
husband is to be
taken unless he
has
-renounced,conv
erted or is of
unsoundmind.

S.9 capacity to give in adoption

(1). father & mother or
guardian
(2) subject to the provisions of
subsection(3)&(4) father, if alive
shall have the right but consent of
wife essential, unless there isi.renunciation or
ii.conversion or
iii.unsounness of mind
(3)mother,if alive shall have the
right but with the consent of
husband, unless he has i. renounced the world or ii.
converted or
iii. unsound mind.(Amendment
of 2010)
(4)guardian can give where both
father & mother arei. dead or ii.renounced or
iii. unsound mind or
iv. abandoned or
v. parentage of child not known
but with prior permission of the
court i.to any person or
ii including guardian himself.
(5) court shall be satisfied about
i. welfare of the child &
ii.wishes of the child having
regard to the age and
understanding of the child
iii no financial consideration in
the transaction.
Explanation: i. Expression father
and mother do not include
adoptive father & mother.
i(a) guardian means a person
having the care of the person of a
child or both person and property
and includes-testamentary(appointed by For
M)
-de jure guardian ( declared or
appointed by court)
-court means civil court within
whose jurisdiction the child
ordinarily resides.

S.10
capacity
to be
taken in
adoption
He or she
should
bei.Hindu
and
ii.not
already
been
adopted
iii.below
15 years
of age
unless
custom or
usage
provide
iv.unmarr
ied
unless
custom or
usage
permits.

S.11 restrictive
conditions
i.adoption of son hindu son, grand son
or great grand
son(whether by blood
or adoption)
must not be living at
the time of adoption
ii. adoption of
daughterdaughter or sons
daughter(whether by
blood or adoption)
must not be living at
the time of adoption.
iii. age difference
between adopter and
adoptee when they
belong to opposite
gender must be
21years
iv.same child may not
be adopted
simultaneously by two
or more persons.
v. actual giving and
taking of child with
intent must be there.
Performance of Dutta
Homa is not essential