The concept of adoption is alien to muslim law but it recognizes the concept of ‘acknowledgement of legitimacy’ of a child. When the paternity of a child, that is, his legitimate descent from his father cannot be proved by establishing a marriage between his parents at the time of conception of birth, but the father of the child treated him as a son not casually but intentionally, this is the acknowledgement of legitimacy and son is entitled for inheritance.
Syed Habibur Rahman Chowdhury vs Syed Altaf Ali Chowdhury
Acknowledgment of legitimacy does not mean legitimization of a child. There is difference between both term. This was distinguished by Bombay High Court in Syed Habibur Rahman Chowdhury vs Syed Altaf Ali Chowdhury 1921[1]
Facts of the Case
- A Habibur Rahman Chowdhury, claimed a declaration that he was the legitimate son of the late Nawab of Bogra, who died intestate on the 2nd July, 1915.
- The suit was opposed by the late Nawab’s grandson, who was the son of a legitimate daughter, and by two nephews, the sons of an elder brother.
- The plaintiff was admittedly the natural son of the late Nawab, his mother having been a Jewess, Mozelle Cohen, who became a Mahomedan and cohabited with the Nawab. He was born in 1893.
- The Nawab had a daughter by the same lady in 1891. The Nawab’s legitimate wife, the grandmother of the first defendant, died in 1890.
- The plaintiff based his claim on two grounds.
- Ha averred first that Mozelle was married to the Nawab.
- He further averred that on many occasions the Nawab had acknowledged him as his legitimate son.
The observations of the court
Distinction between legitimacy and legitimization
Before moving further, the court made distinction between legitimization and legitimacy, which is as follow-
- Legitimacy is a status which results from certain facts. Legitimation is a proceeding which creates a status which did not exist before.
- In the proper sense there is no legitimation under the Mahomedan law. Examples of it may be found in other systems. The adoption of the Roman and the Hindu law effected legitimacy. The same was done under the Canon Law and the Scotch Law in respect of what is known as legitimation per subsequens matrimonium.
Doctrine of ‘Acknowledgement’ in Muslim Law
Son should be from a marriage
- By the Mahomedan law a son to be legitimate must be the offspring of a man and his wife or of a man and his slave; any other offspring is the offspring of zina, that is, illicit connection, and cannot be legitimate.
The Proof of marriage
- The term “wife” necessarily connotes marriage; but as marriage may be constituted without any ceremonial, the existence of a marriage in any particular case may be an open question. Direct proof may be available, but if there be no such, indirect proof may suffice.
There should be the acknowledgement as a natural son and not just an acknowledged son
- Now one of the ways of indirect proof is by an acknowledgment of legitimacy in favour of a son, this acknowledgment must be not merely of sonship, but must be made in such a way that it shows that the acknowledgment to accept the other not only as his son, but as his legitimate Son.
Acknowledger should be in proper age from acknowledgee and wife should not be in prohibited degree
- It must not be impossible upon the face of it, i.e. it must not be made when the ages are such that it is impossible in nature for the acknowledger to be the father of the acknowledgee, or when the mother spoken to in an acknowledgment, being the wife of another, or within prohibited degrees of the acknowledger, it would be apparent that the issue would be the issue of adultery or incest.
Acknowledgement must be accepted by acknowledgee
- The acknowledgment may be repudiated by the acknowledgee.
In this case, the court dismissed the case of habibur rehman Choudhry.
Reference
Syed Habibur Rahman Chowdhury vs Syed Altaf Ali Chowdhury (1921) 23 BOMLR 636
[1] (1921) 23 BOMLR 636