There are three ways that paternity can be established in Islam: 1) By marriage, where a child born within a certain period after marriage or divorce is presumed to be the husband's legitimate child. 2) By acknowledgement, where a man formally recognizes a child as legitimate if certain conditions are met. 3) By evidence, usually when paternity is disputed and a wife must provide witnesses to prove the child is her husband's. Illegitimate children are those born outside of lawful marriage, and legitimacy can only be established within wedlock according to hadith and Islamic family law.
There are three ways that paternity can be established in Islam: 1) By marriage, where a child born within a certain period after marriage or divorce is presumed to be the husband's legitimate child. 2) By acknowledgement, where a man formally recognizes a child as legitimate if certain conditions are met. 3) By evidence, usually when paternity is disputed and a wife must provide witnesses to prove the child is her husband's. Illegitimate children are those born outside of lawful marriage, and legitimacy can only be established within wedlock according to hadith and Islamic family law.
There are three ways that paternity can be established in Islam: 1) By marriage, where a child born within a certain period after marriage or divorce is presumed to be the husband's legitimate child. 2) By acknowledgement, where a man formally recognizes a child as legitimate if certain conditions are met. 3) By evidence, usually when paternity is disputed and a wife must provide witnesses to prove the child is her husband's. Illegitimate children are those born outside of lawful marriage, and legitimacy can only be established within wedlock according to hadith and Islamic family law.
There are three ways that paternity can be established in Islam: 1) By marriage, where a child born within a certain period after marriage or divorce is presumed to be the husband's legitimate child. 2) By acknowledgement, where a man formally recognizes a child as legitimate if certain conditions are met. 3) By evidence, usually when paternity is disputed and a wife must provide witnesses to prove the child is her husband's. Illegitimate children are those born outside of lawful marriage, and legitimacy can only be established within wedlock according to hadith and Islamic family law.
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Legitimacy of children
- An illegitimate child is one who is born by an act which is unlawful according to Hukum Syarak.
Hadith
- There shall be no legitimacy except in wedlock and the adulterer has nothing but punishment and repentance.
Paternity in Islam may be established through three ways.
1. By marriage
Shafie & Section 110 of IFLA 1984 (also Section 113)
- If a child is born (a) 6 months born after marriage, or (b) 4 years born after death/divorce, then the child shall be subscribed to the previous father.
Shafie & Section 111 of IFLA 1984 (also Section 113)
- However, if a child is born more than 4 years after the death/divorce, then the child shall not be subscribed to the previous husband, unless he asserts that the child is his.
Section 112 of IFLA 1984 (also Section 113)
- If after iddah, the woman did not remarry but gave birth within 4 years, then the legitimacy of the child shall be subscribed to the previous husband.
Haji Ghazali v Asmah
- The court held that the child was legitimate & ordered the husband to pay maintenance for the child because the child was born more than 6 months after marriage (married – 1974 and divorce – 1975), and the husband did not take soonest step to deny the child but merely did so as defense against the wife’s claim.
Salim v Masiah
- The court gave judgment for the wife, who claim for maintenance for her child, because the child was born more than 8 months after marriage and the wife was in fact pregnant during the marriage.
Wan Azmi v Nik Salwani
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- The court attached the legitimacy of the child to plaintiff because the child was born more than 6 months from the date of sexual intercourse between parties, so, the plaintiff has to pay for the maintenance.
2. By acknowledgement
- In theory, it is not a process of legitimation but a formal recognition of a status of a legitimacy
and only applicable in cases of uncertainty.
Section 114 of IFLA 1984
- Conditions for a valid acknowledgement of man to a child, either expressly or impliedly, are;
a. paternity of the child is not established in anyone else;
b. the ages of the man and the child are such that filial relationship is possible;
c. where the child is of discreet age, the child has acquiesced in the acknowledgement;
d. the man & the mother of the child could have been lawfully joined in marriage at the time of conception;
e. the acknowledgment is not merely that he/she is his son/daughter, but the child is his legitimate son/daughter;
f. the man is competent to make a contract;
g. the acknowledgement is with the distinct intention of conferring the status of
legitimacy;
h. the acknowledgement is definite and the child is acknowledged to be the child of his body.
3. By evidence
- Normally arises when a wife alleges that the child is hers where her husband rejects such allegation. In such cases, the wife may bring evidence to prove her allegations by producing 2 female witnesses.
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Hanafi
- 1 female witness is sufficient
Shafie
- minimum is 4 female witnesses
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