Family law – Child Legitimacy

Child Legitimacy
Legitimacy of a child is a status which directly results from ‘the fact of paternity’. Paternity depends upon the existence of a
marriage. Under Islamic law, the legitimacy is established by a direct or indirect proof of marriage between the father and the
mother of the child.

The principle of child legitimacy lies upon the hadith of the Prophet PBUH which states that, “the child belongs to the
marriage bed”. This hadith indicates a man who involves in an illicit relationship with a married woman and claims the child she
bears. Allah, the legislator paid no attention to this claim and affirmed that, the child remains the legitimate descendant of the
woman’s lawful husband. However, the husband can deny this association with the child by li’an; the process of taking an oath
by Allah and invoking His curse after an allegation of adultery on part of his wife. This hadith in favour of the legitimacy of the
child and mother is the source of Islamic presumption to avoid the dire consequences of illegitimacy of a child
[Welchman,2007]. Classical jurisprudential views vary on the concept of child legitimacy and modern legislative reform
throughout the Muslim world have not removed, but have maintained or expanded such variance.

A child is presumed to be legitimate if it is born six months after a marriage has been contracted or within the period of
gestation when a marriage has been terminated by either death or divorce. All schools and sects consider six months as the
minimum period of gestation. But, four Sunni schools differ in their interpretation while considering the maximum period of
gestation. Hanafi school follows the view of Abu Hanifa which is two years. Other three schools accept longer periods. Shafi
and Hanbali accept four years of gestation while Maliki allows five years of gestation. However, the concept of “sleeping
foetus” later developed by deciding the approximate period of gestation is nine months. In the law of Shi’ah, the maximum
period of gestation is 10 lunar months which corresponds to the medical view.

In the Holy Quran, surah 4 verse 233 states that, “mothers should suckle their infants for two whole years who desires to
make complete time of suckling. The husband based on his capacity must provide their maintenance and clothing. No
burden shall be imposed on husband or wife because of the child. Nevertheless, if both desire weaning by mutual
consent and counsel, there is no blame for them until payment is made what is acceptable. And fear Allah and knows
that Allah sees what you do.” This ayah directs mother can suckle the infant two whole years and no sin if she consent to
wean.

Surah 46 verse 15 indicates that the gestation and weaning period is of whole 30 months which means, if the mother delivers
the child within 9 months, the infant will only need 21 months of suckling and if she delivers within 6 months, then has to suckle
for two years.

In the traditional law, a woman who declares herself pregnant following the termination of her marriage, remain in iddah period
until the delivery of the child. Under the law of Sunni schools, a women is entitled to maintenance from her husband while
maintaining iddah period. Reforming legislation in the Middle East has provided that the maximum length of iddah period is
approximately 10 lunar months which evidently removes the impossible period of gestation set out by the traditional law. On
the contrary, Pakistan has amended the Evidence Act 1872 which provided that a child was presumed to be legitimate if it is
born during a valid marriage or within 10 months of dissolution. The amended text now reapplied the Hanafi law so that a child
born within two years of the dissolution of marriage will be considered as a legitimate child.

In Hanafi law, a marriage can be concluded by proxy. The child who born after six months of marriage can still be considered
as legitimate, even if the parties to a marriage have never met. Other schools however calculated the period of gestation from
the date the parties have had the access to each other. In Shi’a law, this period starts from the date of actual consummation.

Egypt was the first country to legislate that the period of gestation initiates from the date the parties have the access to each
other. Other Middle East countries also took similar stance to enjoy the claim of paternity only by showing the access between
the parties.

In Iran, the Supreme Court in plenary assembly considered the obligation of the biological father to the illegitimate child;
albeit the traditional doctrine was that no relationship exist between these two. This decision is supported by the opinion of
Ayatollah Khoemini where he stated that an illegitimate child is the child of the biological father whether the father is an
adulterer or fornicator and he must accordingly fulfill all his ‘paternal duties’ which he would owe to ‘a legitimate child’ except
that there will be no mutual rights of inheritance.

In conclusion, it can be said that, Islamic jurists propounded laws of child legitimacy in order to prevent as many children as
possible from being declared as illegitimate despite denying rights of inheritance. Also, these laws served to protect the women
from the charge of ‘zina’ as doing so draconian penalties could be imposed.

Md Mainul Hossain Turja