MULLA’S MAHOMEDAN LAW
Sections—342 to 344
Legitimacy of a child—Whether
acknowledgement by father without proof of any valid marriage between the
father and mother of such child is sufficient to establish legitimacy?— Where
paternity of a child is unknown, the law presumes him to be the child of the
acknowledger—But acknowledgment will not establish legitimacy if it is found
that the child is an offspring of Zina or of another person—If the defendant
failed to prove the marriage of his mother that will not create an impediment
to the acknowledgment itself—Since the’ plaintiff did not take up the plea that
the marriage could not have been possible, it being within the prohibitory
degree or offspring of Zina—The force of logic therefore upholds the contention
of the defendant for the doctrine of acknowledgement to dome into
play—Defendant proved acknowledgment by the father—The plaintiff failed to
establish that there was no marriage between the father and mother of the
defendant—Therefore acknowledgement is sufficient to establish paternity of the
defendant. [Majority per B.H. Chowdhury, J (Munim, CJ and Masud, J, concurring]
Valid
marriage between the parents is the essential precondition of legitimacy—If
such a marriage is disproved, no amount of acknowledgement shall make the child
legitimate it must be borne in mind that acknowledgement’ in Mohammadan Law is
no substitute for adoption in Hindu Law or Roman Law—under the Mohammadan Law
relationship by consanguinity is prerequisite for legitimacy and the latter is
dependent upon’ a valid marriage of the parents—If Amir Au had acknowledged the
defendant as his son, then he knew better who was defendant’s mother but that
woman not being any of his three wives, the defendant is not his legitimate
son——The learned Single Judge is found to have rightly refused interference
with the findings of the Court below which stand on a solid basis..
Khorshed
Alam alias Shah Alam Vs. Amir Sultan Ali Hyder and another, 5 BLD (AD) 121
Ref:
10 I, L.R Allahabad 289; 48 l.A. 114: 43 I.A.212; 56 l.A. 201; 1IM.I.A. 94 8
l.A.; 136— Cited.