PATERNITY AND MATERNITY: CONDITIONS FOR A VALID ACKNOWLEDGEMENT OF PATERNITY: PRESUMPTIONS AS TO LEGITIMACY OF A CHILD IN PAKISTAN

OPENING PARAGRAPH:

Parentage includes both paternity and maternity. Establishing parentage is not only the right of the father but also the right of the child, which may begin during its existence in the womb. Acknowledgement is a mode to establish paternity that gives rise to certain rights and liabilities under Islamic law.

MEANING OF PATERNITY AND MATERNITY:

According to Wilson:
“The relation between a father and a child is called paternity, and the relation between a mother and her child is called maternity.”

APPLICATION OF THE PRINCIPLE:

The doctrine of acknowledgment applies only in cases of uncertainty regarding legitimacy. In such cases, acknowledgment has legal effect, but this effect always proceeds upon the presumption of a lawful union between the parents of the acknowledged child.

ESTABLISHMENT OF PARENTAGE:

Parentage of a child to its mother and father can be established through marriage, whether valid or irregular, thereby conferring legitimacy. This legal relationship gives rise to rights such as inheritance, guardianship, and maintenance.

A. ESTABLISHMENT OF PATERNITY:

Paternity cannot be established for illegitimate children, only for those born within a valid or irregular marriage. Such children are subject to the Islamic criteria for the minimum and maximum periods of pregnancy.

Quranic Reference (46:15 and 31:14)
Establishes the minimum term of pregnancy as six lunar months.

All four Sunni schools deem a child born in less than six months from the date of marriage to be illegitimate, except where the father of a lawfully born child denies paternity, asserting the child was not conceived through lawful intercourse.

1. ACKNOWLEDGEMENT OF PATERNITY:

One unique feature of Muhammadan law is that, in cases of doubtful paternity, the acknowledgment of a person as father grants legitimacy to the child.

Two methods of conferring paternity:

• Through birth in a valid or irregular marriage.

• Through acknowledgment where paternity is uncertain.

2. CONDITIONS FOR A VALID ACKNOWLEDGEMENT OF PATERNITY:

1. Paternity Must Be Uncertain:
   The child must not be known as the offspring of another person.

2. Acknowledgement Must Be of a Legitimate Child:
   The person must acknowledge the child as his legitimate son or daughter.

3. Appropriate Age Difference:
   There must be a minimum age difference of 12.5 years between the acknowledger and the child to reflect a plausible parent-child relationship.

4. Child Must Not Be Illegitimate:
   A child born of zina (adultery, fornication, or incest) cannot be legitimized through acknowledgment.

5. Acknowledging Person Must Be Competent:
   Only a major of sound mind can validly acknowledge a child.

6. Right of Repudiation by Acknowledged Person:
   Upon attaining maturity, the acknowledged child may either accept or repudiate the acknowledgment.

3. EFFECTS OF ACKNOWLEDGEMENT OF PATERNITY:

• The child becomes legitimate.

• Presumption arises of a valid marriage between the mother and the acknowledger.

• Mutual rights of inheritance are established.

B. ESTABLISHMENT OF MATERNITY:

Maternity is established solely through childbirth. Whether the mother is married or unmarried, she is recognized as the natural mother. If the child is born out of a lawful relationship, it is considered legitimate; if not, the child is illegitimate. However, an illegitimate child may inherit from the mother.

Under Shia Law: No mutual right of inheritance exists between the mother and an illegitimate child.

Case Reference: Muhammad Talat v. Yasmeen Zohra (1992 CLC 1180)
Held that a child born in lawful wedlock is presumed to be the legitimate child of the husband and mother, without the need for further acknowledgment.

PRESUMPTIONS AS TO LEGITIMACY OF A CHILD IN PAKISTAN:

1. Continuous cohabitation and acknowledgment by the father raise a presumption of legitimacy.

2. Acknowledgement must indicate legitimate paternity, not merely biological.

3. Treating the child as their own by both parents implies acknowledgment.

4. Courts rely on the conduct of the father as a strong indicator of acknowledgment.

5. If a child is born during cohabitation (without divorce), legitimacy is presumed.

6. Direct evidence is not mandatory; circumstances can establish legitimacy.

7. If marriage is not proven but the father treats the child as his own, legitimacy is presumed.

8. This presumption is rebuttable through contrary evidence.

9. Courts require that the acknowledgment conforms to Islamic principles.

10. DNA evidence and medical reports are admissible to prove or disprove paternity.

11. Under Article 128 of the Qanun-e-Shahadat Order 1984, birth during the marriage or within two years of its dissolution is conclusive proof of legitimacy.

CONCLUSION:

In Islamic law, the establishment of parentage—particularly paternity—is of great legal and moral significance. It governs vital aspects of a child’s life, including inheritance, identity, and legitimacy. Acknowledgment plays a crucial role where biological proof or valid marriage is absent. However, strict conditions exist to prevent misuse and to preserve the sanctity of legitimate parentage. The law offers flexibility where doubt exists but always upholds the foundational principles of Shariah. Pakistani courts, while incorporating modern evidence like DNA testing, largely maintain the traditional Islamic framework, ensuring justice while respecting religious doctrines