Rights of Illegitimate Children in Pakistan: Sunni and Shia Law Perspectives

Introduction

Under Islamic law, a child born out of wedlock is considered filius nullius (“a son of nobody”) and considered to own no lineage to the biological father. The use of the term ‘illegitimate’ in this article is for legal purposes only and not meant to be derogatory in any way.

Position Under Sunni Law

Sunni jurists have held that any child born to a woman during the subsistence of her marriage is to be attributed to the husband and not anyone else, even if the woman is certain that the child was born out of wedlock. However, if the husband chooses to exercise his right of lian (mutual divorce) and disowns the child, the child is to be attributed to the mother and not the adulterer. If an unmarried woman has a child, a majority of Sunni jurists agree that the child is to be attributed to the mother and not the adulterer, even if there is certainty that the child was fathered by the adulterer and his identity can be established. Consequently, in both cases, there exist no rights of maintenance or inheritance between the ‘illegitimate’ child and the biological father and his relatives. However, a mutual right of inheritance between the mother and her ‘illegitimate’ child is recognized under Sunni law. Further, the law also recognizes a mutual right of inheritance between the ‘illegitimate’ child and his or her maternal relatives.[1]

The rationale behind attributing a child born during the subsistence of a marriage to the husband is to prevent the stigmatization of the child. The courts in Pakistan have held that Islamic law leans in favour of legitimization rather than stigmatization[2] and abhors the contention of illegitimacy.[3] In Munir Ahmad v. Muhammad Saddique,[4] the Lahore High Court applied the principles of Islamic law to conclude that courts have generally refused to admit illegitimacy when legitimacy could be inferred from the surrounding circumstances and the surrounding circumstances had not been rebutted through any reliable evidence.

In order to facilitate the ‘illegitimate’ child’s upbringing and maintenance, such a child is attributable to the mother and is entitled to inherit from the mother and her relatives under Sunni law. In a fatwa issued by the Permanent Committee for Islamic Research and Issuing Fatwas (al-Lajnah ad-Daa’imah), it was held that an illegitimate child was to be attributed to the mother and would be subject to the same rulings as any other Muslim if his mother was a Muslim.[5] The logic behind such a determination is that a child is to be presumed innocent of all sins at the time of birth and is not to be blamed or brought to shame for the mother’s acts. This line of reasoning finds support in the following verse of the Quran:

“And no bearer of burdens will bear the burden of another.”

[Quran 35:18]

A mutual right of inheritance between an ‘illegitimate’ child and the biological father is not recognized under Sunni law. This position derives credibility from the Latin maxim commodum ex injuria sua nemo habere debet (‘a wrongdoer should not be enabled by law to take any advantage from his actions’). It has been argued that an adulterer should not be allowed to benefit from his wrongful act by inheriting the property or estate of his ‘illegitimate’ child. However, this argument is counter-productive in the context of an illegitimate child; it allows the adulterer to avoid paying for the maintenance the child and exclude the child from the right to inherit his property.

Position Under Shia Law

Under Shia law, any child born out of wedlock is not attributable to either the mother or the biological father, even if the identity of the biological father can be established with certainty. Consequently, the rights to maintenance and inheritance of an ‘illegitimate’ child are not recognized at all under Shia law. An ‘illegitimate’ child is not entitled to inheritance at all, not even from the mother and other maternal relatives.[6]

Relevant Provisions and Case-Law

Article 128 of the Qanun-e-Shahadat Order (QSO) 1984 provides that it shall be conclusive proof of legitimacy that a child was born not earlier than the expiration of six months from the date of a valid marriage and within two years after dissolution of the marriage, provided that the mother remained unmarried during this period.

On the issue of determining the legitimacy of a child born during the continuance of a valid marriage, the Lahore High Court noted in Muhammad Pervez v. Additional District Judge[7] that Islam had laid great emphasis on the sacred right of reputation of a person in society, which is why the strictest possible mode of scrutinizing evidence of truthful witnesses was required to prove allegations of zina (adultery). Consequently, the court held that any child born after six months of wedlock would be considered a ‘legitimate’ child unless proven otherwise by solid evidence. In Waqar Ahmad v. Nomina Akhtar,[8] the defendant husband disowned a child born during the existence of the marriage and declared the child illegitimate while alleging that he was born premature, i.e. six months after marriage. The Peshawar High Court held that under Islamic law, the legitimacy of a child would be presumed if he was born within a period of 180 days, i.e. six months, and the maximum period so fixed was two years. It was further held that no child could be stigmatized as ‘illegitimate’ simply because it was born prematurely, i.e. within six months, or with an unusual delay of two years. Further, under Article 35 of the Constitution of Pakistan 1973, the state has an obligation to protect marriage, family, the mother and the child. The court interpreted the intention and object of Article 35 to be the protection of the liberty and dignity of the child and ensuring that the child was brought up in a favourable social environment so that he or she could become an honourable citizen. More recently, the Lahore High Court has held in Shahida Shaheen v. Asif Sultana[9] that if there is any acknowledgement or affirmation of parentage on the part of the father, then the child follows the status of the father.

The Supreme Court of Pakistan conclusively decided the question of legitimacy during marriage in Ghazala Tehsin Zohra v. Ghulam Dastagir Khan.[10] A declaratory suit was filed by the father seeking a declaration to the effect that he was not the biological father of the children born during the subsistence of the marriage. While pronouncing judgment, the Supreme Court determined that once the relevant facts as to the commencement and dissolution of marriage and the date of birth of a child within the period envisioned in Article 128 of QSO had been proven, and the date of birth had been within the period specified in the said Article, the court could not allow evidence to be given for disproving the legitimacy of a child born within the said period. Further, the court enunciated the principles of Muslim Personal Law according to which paternity must be denied by the father either immediately after the birth of the child (as per Imam Abu Hanifa), or within the post-natal period, which is a maximum of 40 days after the birth of the child (as per Imam Muhammad and Imam Yousuf). It was held that in order to uphold the honour and dignity of women and innocent children, as well as safeguard the value placed on the institution of the family, no lawful denial of paternity could be made after the stipulated periods.

On the issue of custody of an ‘illegitimate’ child, the Lahore High Court has held in Roshni Desai v. Jahanzeb Niazi[11] that under Islamic law, the father of an ‘illegitimate’ child has no legal ties with the child even though he is the biological father and the blood ties between the two is undisputed. Further, the mother of an ‘illegitimate’ child is not only entitled to the custody of the child but is also regarded as the guardian of the child to the total exclusion of the father.

Special provisions have been made by the courts of Pakistan for ‘illegitimate’ children conceived and born as a result of rape. Considering that such a child is born innocent and must be granted protection of the law, the Lahore High Court held in Nadeem Masood v. The State[12] that a minor baby girl born as a result of rape was bound to suffer mental anguish and psychological damage throughout her life and was thus entitled to compensation under the law. Consequently, the offender was directed to pay compensation of PKR one million to the child under Section 544-A (5) of the Code of Criminal Procedure (Cr.PC) 1898.

A crucial recent development has arisen regarding the legitimacy of an ‘illegitimate’ child. In Muhammad Khalid v. The State,[13] the Lahore High Court has held that according to Mahomedan Law, a child ‘illegitimate’ by birth becomes legitimated by force of an acknowledgement either express or implied, and either directly proved or presumed. Consequently, this acknowledgment renders a son or daughter to be a ‘legitimate’ child and heir of the father.

Recommendations

The recent Lahore High Court judgment in Muhammad Khalid v. The State is an important step towards recognizing the rights of illegitimate children. It is recommended that the judgment should be implemented in letter and spirit by making it mandatory for an adulterous father or rape offender to acknowledge parentage once the same has been established through clear evidence in the form of DNA testing, thereby creating rights of maintenance and inheritance for a child born out of wedlock. In addition, the Supreme Court of Pakistan should take cognizance of the matter and pronounce a definitive judgment in this regard to be followed by the High Courts of all provinces.

With regard to maintenance of an ‘illegitimate’ child, Section 488 of the Cr.PC provides that if a person, despite having sufficient means, neglects or refuses to maintain his wife or his legitimate or illegitimate child who is unable to maintain itself, such person may be ordered by a Magistrate to pay monthly allowance for the maintenance of his wife or child “at a monthly rate not exceeding four hundred rupees as a whole”. It is critical to note that the amount specified in Section 488 is farcical and entirely insufficient to maintain an individual for even a single day. An amendment is urgently required to update this outdated legislation and set a maintenance allowance in light of societal and economic conditions.

Further reforms in the law are also required to safeguard the rights of ‘illegitimate’ children and integrate them as valuable members of the society. The state should provide material and logistical support to organizations, such as the Edhi Foundation or Chhipa Welfare Association, dedicated to the upbringing of abandoned children. During his tenure as President, Asif Ali Zardari took a positive step by giving his surname to several nameless children so that they would not face discrimination in society.

Article 25 (3) of the Constitution empowers the state to make special provisions for the protection of women and children. Consequently, the state should create certain surnames to be given to ‘illegitimate’ children so that they have an identity of their own and feel a sense of belonging.

---

References

[1] Mulla D.F., Principles of Mahomedan Law (1^st edn, Bombay Thacker 1905) 80.

[2] See, e.g. Sikandar Ali v The State [2000] PCr.LJ 214.

[3] See, e.g. Manzoor-ul-Haq v Kaneez Begum [1993] CLC 109.

[4] [2005] MLD 364.

[5] Fatwa No. 22/34 (al-Lajnah ad-Daa’imah).

[6] Mulla D.F., Principles of Mahomedan Law (1^st edn, Bombay Thacker 1905) 88.

[7] [2000] CLC 1605.

[8] [2010] PLD Peshawar 10.

[9] [2016] CLC 1672.

[10] [2015] PLD SC 327.

[11] [2011] PLD Lahore 423.

[12] [2015] PCr.LJ 1633.

[13] [2018] PCr.LJ Note 29.

---

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.