Islamic Law

Paternity under Islamic Law The paternity of a child can be established through marriage, acknowledgement and evidence under the Islamic law in Malaysia. Paternity of a child should be established in order to determine his or her status as a legitimate child or an illegitimate child. Thus, when a child is born, it is important that his legitimacy is assured so that his rights such as right to maintenance, custody and inheritance can be established.

The provision for legitimacy of a child can be found in the Islamic Family Law (Federal Territories) Act 1984 (IFLA). First of all, the paternity of a child can be determined through marriage. All elements of marriage must be fulfilled and most importantly, the marriage must be valid. There must also be consummation of marriage for legitimacy of a child to be fully established. The paternity of a child should not be determined through the resemblance of physical features between the husband and the child. The Shafii school of thoughts and s 110 of IFLA[1] provided that where a child is born to a woman who is married to her husband after six months from the date of marriage or within 4 years after the dissolution of marriage and the mother having not remarried, the paternity of the child is belongs to the husband. The paternity of a child will not be established in the man if the child is born within the six months period of the marriage.

The husband may either by way of lian to disclaim the child if he strongly believes that the child does not belong to him or he may allege that the child is his and but is not as the result of fornication. The jurists of the Islamic Jurisprudence interpreted the six months period from their understanding based on surah 46: 15 and surah 31:14 of the Holy Quran. Surah 46:15 stated that “…the carrying of the child to his weaning is a period of thirty months…” while surah 31:14 stated that “…in travail upon travail did his mother bear him, and in years twain was his weaning…” Hence, by subtracting the two years which is equivalent to 24 months as stated in the second verse from 30 months which is stated in the first verse, the jurists get 6 months which is the minimum period for a baby to be delivered out from his or her mother’s womb. In Salim v Masiah,[2] the respondent and appellant were married on 6 October 1968 and divorced on 19 November 1968. The child, Maimon was subsequently born on 2 June 1969. The respondent claimed for the maintenance for her child while the appellants alleged that the respondent was already pregnant at the time of marriage.

The Kadi gave judgment in favour of the wife and stated that the child was born after six months after their marriage. The appeal was dismissed subsequently. In instances where a woman remarries and subsequently gives birth to a child within the period of six months of remarriage, the child’s paternity is as of the first husband. The child will only be ascribed to the second husband if the woman gives birth to the child after the period of six months from the time of consummate with the second husband. Where the husband had accused the wife of fornication or zina, the husband must bring in 4 witnesses and if he fails to do so, he must take the oaths as prescribed in surah 24:6-7 as stated in the Quran. If the wife denied the accusation, she must also take the oaths as prescribed in surah 24:8-9 of the Quran. As a result of such oath, the woman will not be subjected to zina punishment and the child will be legally fatherless. The child will have no right to inherit any estate of the father and vice versa. S 111[3] stated that the paternity of the child shall not be affiliated in the man where a child is born more than 4 years after the dissolution of marriage unless he or his heirs alleged that the child belongs to him. S 112[4] described that where a woman, not having remarried, upon completion of her iddah period and subsequently give birth to a child, the paternity of the child should not be affiliated to her husband unless the child was born less than four years from the date of the termination of their marriage. S113[5] provide the child which is born as a result of syubhah intercourse will not be considered as illegitimate child but instead the child’s paternity shall be affiliated to the man.

Syubhah intercourse is the sexual intercourse between a man and a woman whom both of them believe that they are lawfully married and lawfully declared as husband and wife which is later proven otherwise. The child shall remain legitimate if the woman had give birth to the child between the periods of six months to four years after the intercourse. Secondly, the paternity of a child may also be determined through acknowledgement. S114[6] provides that when a man had either expressly or impliedly acknowledges another as his lawful child, the paternity of the child shall be established in the man. However, there are 7 conditions that need to be fulfilled by the man in order to declare that the child indeed belong to him. First, there should be no other people that had established the child’s paternity in him. This means that there should be no one else other than him that claims the child was theirs. Second, the age of the man and the child are such that filial relationship is possible between them.

For example, there should be a difference of at least 15 years of age gap between the father and the child. If the age gap is narrow, it is possible that the child will disrespect the father or treated him as his brother. Thus, bigger large gap is important to establish the respect and filial between the father and child. Third, if the child is of discreet age of understanding the nature and surrounding circumstance, he should has acquiesced or agree with the acknowledgement. The child must agree that the man who intended to acknowledge him as his lawful child to be his legal father for the rest of the child’s life. Fourth, the man and the mother of the child could have been lawfully joined in marriage when it was begotten.

There shall not be any proof that there were no lawful marriage between the man and the mother of the child which will affect the presumption of legitimacy of the child. Fifth, the acknowledgment should not be only merely son-ship but that the child is his legitimate child which was a result of the consummation of marriage between the man and the mother of the child. He must not just merely acknowledge the existence of the child but also the kinship between both of them. Sixth, the man must be a competent person and have the legal capacity to enter into a contract. Any contract entered by a minor shall be deem void. Under the Shafii school of thoughts, a minority age for a male is below 15 years old. Thus, a 14 years old boy does not have the capacity to enter into the marriage contract.

Seventh, the man who acknowledges must have the true intention of affirming the status of legitimacy of the child or acknowledgement of the child is definite to be the child of his body. In other words, he must have the confidence that the child is reproduced from his sperm and the ovum of the child’s mother and the child is part of him. S115[7] provides that the presumption of paternity through acknowledgement can be rebutted in a few ways. First is by the disclaimer on the part of the person acknowledged.

The presumption may also be rebutted where it is proven that the proximity of age between the man and the child would render the filial relationship impossible. This usually happens when the age gap between the man and the child is too narrow. Other than that, the presumption may also be rebutted where it is proven that the child in fact belongs to other person or the child is the result of consummation marriage of some other person with the mother of the child. It is also rebuttable where there is proof that man who intended to acknowledge the child could not possibly be the lawful husband of the mother of the child at the time when the child could have been conceived. S116[8] provides acknowledgment by a woman in iddah shall not ascribe the paternity of the child to her husband unless this acknowledgment is affirmed by him or by evidence. S117[9] provided that the acknowledgment of the child who acknowledged another as his parent shall constitute a valid relationship of kinship in condition the filial relationship is possible between them. S118[10] provided that acknowledgment other than as a child or parent shall not affect any other person except he affirms the acknowledgement. By virtue of S119[11], the acknowledgement shall become irrevocable once it has been made in respect of paternity or relationship. Lastly, paternity of a child can be determined through evidence. This happens when the husband is in doubt on the paternity of the child which was delivered by his wife when he was away for a short period of time. The wife may bring two females as evidence to prove her innocence.

However, as the society has kept developing, the type of evidence to be proof also evolved. Most people prefer to use DNA test in proving the paternity of the child. DNA test is more accurate in proving the genetic relationship between the biological father and the child. There are cases where newborn babies are mix-up in hospitals and DNA test has easily proof the paternity of the child. This may also serve as strong evidence when there are two people acknowledging the paternity of the child.

[1] Section 110 of Islamic Family Law (Federal Territories) Act 1984 states that where a child is born to a woman who is married to a man more than six qamariah months from the date of the marriage or within four qamariah years after dissolution of the marriage either by the death of the man or by divorce, the woman not having remarried, the nasab or paternity of the child is established in the man, but the man may, by way of li’an or imprecation, disavow or disclaim the child before the court. [2] (1976) 2 JH 296 [3] Section 111 of the Islamic Family Law (Federal Territories) Act 1984 states that where a child is born more than four qamariah years after the dissolution of the marriage either by the death of the man or by divorce, the paternity of the child shall not be established in the man unless he or any of his heirs asserts that the child is his issue. [4] Section 112 of the Islamic Family Law (Federal Territories) Act 1984 states that where a woman, not having remarried, makes a declaration that the period of ‘iddah has been completed, whether the period is for death or divorce, and she is subsequently delivered of a child, the paternity of the child shall not be ascribed to her husband unless the child was born less than four qamariah years from the date of the dissolution of the marriage either by the death of the husband or by divorce. [5] Section 113 of the Islamic Family Law (Federal Territories) Act 1984 states that where a man has syubhah sexual intercourse with a woman, and she is subsequently delivered of a child between the period of six qamariah months to four qamariah years after the intercourse, the paternity of the child be ascribed to the man. [6] Section 114 of the Islamic Family Law (Federal Territories) Act 1984 [7] Section 115 of the Islamic Family Law (Federal Territories) Act 1984 [8] Section 116 of the Islamic Family Law (Federal Territories) Act 1984 states that where the acknowledgor is a woman who is married or who is observing the ‘iddah, the paternity of the person acknowledged shall not be ascribed to her husband unless her acknowledgment is confirmed by him or by evidence. [9] Section 117 of Islamic Family Law (Federal Territories) Act 1984 states that where a person acknowledges another as his father or mother, the acknowledgement, if assented to or confirmed by the acknowledgee,, whether during the lifetime or after the decease of the acknowledgor, shall constitute a valid relationship, in so far as the parties themselves are concerned, provided that the ages of the acknowledgor and the acknowledge are such that filial relationship is possible between them. [10] Section 118 of Islamic Family Law (Federal Territories) Act 1984 states that where a person acknowledges another as a relation other than as a son, mother, or father, the acknowledgment shall not affect any other person unless that other person confirms the acknowledgement. [11] Section 119 of Islamic Family Law (Federal Territories) Act 1984

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