Despite being a secular state that does not recognize Islamic law as a general source of law, India nevertheless adjudicates disputes among its Muslim citizens in accord with Islamic norms in matters pertaining to familial relations and waqf (religious endowment) through a personal legal system inherited from the British Raj.Footnote 2 With a population of 172 million MuslimsFootnote 3—making it the second largest Muslim community worldwide after Indonesia, and on par with Pakistan—India is thus at the forefront of the evolution of state-administered Islamic family law, irrespective of its status as a minority law.
At the same time, one must not downplay either the social and legal impact of such non-majority status or the state's secular constitutional framework on the administration of Islamic law, especially in regard to the question of filiation. Indeed, given their long-standing presence in a predominantly Hindu-populated subcontinent, Indian Muslims have, over the centuries, embraced in some instances, and as a matter of custom, certain characteristics of the Hindu family structures. While the most notable example may remain that of the coparcenary familial organization, more specific to filiation is the question of adoption, which is recognized in Hindu law, and its recognition and effects among Muslims.
Furthermore, whereas Islamic law may remain the main legal source upon which filiation is established among Indian Muslims, its nature and scope have been altered through both British colonial rule and, more recently, its relative subjugation to the Indian legal order's hierarchy of norms and other secular legal provisions. As highlighted in the introduction to the symposium, India, although institutionally unified, lacks normative unification,Footnote 4 and this despite the constitutional goal of establishing a unified civil code for all its citizens regardless of religious affiliation. Although nonenforceable, this goal nonetheless guides the Indian judiciary's decision making in regard to the interpretation of Islamic family law in an attempt to progressively combine its principles with the Indian constitution's fundamental rights and provisions of other personal laws.Footnote 5 This instance of judicial activism—which has gained traction since the beginning of the twenty-first century—has also led the legislature to enact statutes that offer secular opt-outs to Indian Muslims, as is the case for adoption. Moreover, as with many of the jurisdictions under review, India has incorporated international standards such as the notion of the best interests of the child within its domestic legal framework,Footnote 6 furthering its legal arsenal in the protection of destitute children, and it has grappled with the emergence of new technologies, such as DNA testing, which have had an impact on the law of filiation.
India thus shares many of the experiences of Muslim majority jurisdictions regarding the growing involvement of the state in both administering Islamic law of filiation and offering new legal avenues when it remains silent or forbids certain remedies, thereby enhancing a pluralistic legal framework. However, the minority status of Indian Muslims and the secular nature of the Indian constitutional framework, as well as its drive toward a uniform civil code, render India unique regarding its application of the law of filiation. Further, the colonial legal legacy, coupled with the reliance on largely uncodified Islamic legal provisions, has tested the consistency in which Muslim personal law has been—and to a certain extent continues to be—administered. Given India's common law tradition, the resolution of the conflicts arising from the interplay of both secular and Islamic provisions has been laid largely on the shoulders of the judiciary, which, over the years, has made tremendous efforts to elaborate a coherent legal discourse on the matter.
This article describes the evolution of this legal discourse—how it draws on India's Islamic past, how the colonial legacy interfered with the classical provisions of Islamic law, and how these provisions were progressively interpreted in light of India's post-Independence secular goals. I first present Muslim personal law's sources regarding filiation, their interplay with India's secular provisions—notably in relation to the law of evidence—and the way the judiciary has elaborated mechanisms to solve the inherent conflicts between them. Next, I give a brief overview of how the law of filiation among Indian Muslims currently stands, the preeminence of the presumption of a valid marriage to establish nasab (filiation), and the legal remedies put in place to alleviate the burdens that fall upon a child with a defective or unknown lineage. I conclude on the issue of adoption, commenting on radical changes that have recently opened a secular avenue for Muslims parents seeking to adopt, but also pointing out that despite the new legal framework put forward by the state, the administrative apparatus continues to face problems regarding the care and protection of destitute children.
The Sources of Filiation among Indian Muslims: An Interplay between Classical Islamic Law and Secular Provisions
As mentioned above, family law in India falls within the remit of a personal legal system according to one's religious affiliation. Muslim personal law thus governs most familial relations amongst Indian Muslims, as embedded in the Muslim Personal Law (Shariat) Application Act 1937 (hereafter the Shariat Act).
Section 2 of the Shariat Act does not explicitly mention filiation as a subject within the scope of its application. Nonetheless, as it does include marriage, its dissolution (including liʻān, mutual repudiation), intestate succession, and guardianship—each having a direct relation to a child's status—filiation has been considered an integral, albeit implicit, part of Muslim personal law. Nevertheless, the lack of explicit reference to it within the Shariat Act has allowed Islamic norms regarding filiation to be easily superseded by secular provisions.
Sources of Muslim Personal Law
Despite the Shariat Act's “Statement of Object,” Muslim personal law—unlike its Hindu counterpart—has never been formerly codified in India.Footnote 7 Its sources lie in a set of treatises and textbooks that the courts for the most part consistently uphold,Footnote 8 furthering their authoritative nature through the common law doctrine of precedent. Already in use during the Mughal period, compendiums such as Al-Hidāya Footnote 9 and Al-Fatāwā al-ʿĀlamgīriyya (only partially translated into English)Footnote 10 remain the two main sources of Indo-Islamic law. A certain number of digests summarizing the ever-growing body of case law have subsequently come into use and are regularly updated,Footnote 11 these serving alongside Syed Ameer Ali's treatise, which has had a lasting influence within the judiciary,Footnote 12 particularly because of the author's position as the first Indian national to become a member of Judicial Committee of the Privy Council in 1909. Whereas some contemporary authors are sometimes cited within judgmentsFootnote 13 and in more recent compendiums published by Muslim nongovernmental organizations,Footnote 14 the judiciary relies nonetheless predominantly on the well-established sources that have passed the test of time.
These sources are overwhelmingly part of the ḥanafī juristic school, the most prominent on the subcontinent and thus the primary focus of this article. However, Indian courts progressively recognized both the shīʿa and shāfiʿī legal traditions during the nineteenth century, as well as the right of Indian Muslims to change madhab (juristic school) during the course of their life.Footnote 15
Secular Sources in Relation to Filiation
Nevertheless, both the status of Muslim personal law within a secular constitutional framework and the relative influence of Hindu majority culture on Indian Muslims have had a certain impact on the scope of application of Muslim personal law.
On the one hand, custom remains a relevant source of law regarding filiation among Muslims in India, specifically regarding adoption, as I discuss below. Customary adoptions have long been an established and recognized practice among certain Muslim sects, such as the Khojas,Footnote 16 and in specific territories, such as AwadhFootnote 17 and Kashmir.Footnote 18 Moreover, given that section 3 of the Shariat Act stipulates that Islamic law will be applicable to the subject matter of adoption only upon an individual voluntary declaration, in the absence of such a declaration (which is often the case), customary adoptions may be recognized by the judiciary throughout India. The burden of proof, however, rests with the claimant, who must establish a custom in accord with the definition laid down by section 3(a) of the Hindu Adoptions and Maintenance Act 1956, namely that of a “rule which, having been continuously and uniformly observed for a long time, has obtained the force of law … in any local area, tribe, community, group or family.”
On the other hand, a certain number of legislative and constitutional provisions also have a direct effect on the administration of filiation among Indian Muslims. The Constitution of India provides for a right to equality (article 14), a right to life—including that of a family life—(article 21), and a prohibition of discrimination (article 15), to this end empowering the state to enact “special provisions for women and children” (article 15(3)). Further to these fundamental rights, the constitution also enumerates “Directive Principles of State Policy,” which, although nonenforceable, are used as “the book of interpretation” upon which constitutional provisions are construed.Footnote 19 As such, article 39(f) commands that the state provide children with “opportunities and facilities to develop in a healthy manner,” protecting them against both exploitation and their “moral and material abandonment.” Moreover, having ratified the Convention on the Rights of the Child, India has incorporated most of its provisions into municipal law,Footnote 20 notably the notion of the best interests of the child.
It should furthermore be noted that already in the colonial era, municipal secular enactments had been made applicable to disputes among Muslims in relation to filiation. Section 112 of the Evidence Act 1872 thus displaces the presumption of legitimacy to a child born “during the continuance of a valid marriage … or within two hundred and eighty days after its dissolution,” while section 114 provides for factual presumptions, “regard being had to the common course of natural events,” thus invalidating the Islamic doctrine of the dormant fetus. Finally, section 125(1)(b) and (c) of the Code of Criminal Procedure 1973 provides for the maintenance of both legitimate and illegitimate children.Footnote 21
Conflicts between Muslim Personal Law and Secular Law
As shown above, filiation among Indian Muslims is determined by a variety of sources that more often than not stand in conflict with one another. While the Shariat Act may create an exception to the general application of Muslim personal law regarding adoption—to the benefit of custom—its compatibility with both constitutional and legislative provisions remains however unclear. Moreover, the scope of its territorial application is also constrained; as provided in the Act itself, it does not extend to the state of Jammu and Kashmir (section 1(2)), which enacted its own Jammu and Kashmir Muslim Personal Law (Shariat) Application Act 2007 with a few modifications of the central legislation (notably the absence of section 3). Further, for mainly historical reasons the Shariat Act does not apply in Goa or Daman and Diu, where the Portuguese Civil Code 1867 is still in force;Footnote 22 nor does it apply to the “Renoncants” of Pondicherry.Footnote 23
Whether the Constitution of India affects the administration of Islamic law has been and continues to be a contentious issue. The constitution provides that all “laws in force” before its promulgation should be amended to be consistent with its provisionsFootnote 24 and subsequently considered void if in derogation of fundamental rights.Footnote 25 The judiciary has been given extensive powers to enforce this normative hierarchy,Footnote 26 powers which have themselves been broadened following the introduction of public interest litigation in the 1970s.Footnote 27 Irrespective, given both the largely uncodified nature of Muslim personal law, as well as the lack of explicit reference to personal laws within the definition of “laws in force,”Footnote 28 the judiciary has from an early stage refused to consider Muslim personal law as falling within the scope of constitutional review.Footnote 29 This position continues to be contested, and a recent decision by the Indian Supreme Court banning the practice of unilateral divorce at the husband's initiative (triple ṭalāq) has signaled a possible evolution in that regard, falling short, however, of reversing this well-established precedent.Footnote 30
Hence despite being challenged, the relationship between Muslim personal law and constitutional provisions is nonetheless settled, for the moment at least. Its position vis-à-vis other secular enactments is, conversely, far more fluid. As the aforementioned sections 112 and 114 of the Evidence Act 1872 contradict Islamic norms relating to filiation and more specifically to that of legitimacy, the question of whether they supersede Muslim personal law continues to be in some respect a disputed issue in the absence of a definitive judgment by the Supreme Court.
Since the issue was first raised by Syed Mahmood J. in 1888, Indian High Courts have traditionally been split as to the overriding nature of sections 112 and 114 in regard to Muslim personal law.Footnote 31 The issues in the debate can be summed up as follows: on the one hand, whether rules relating to legitimacy are rules of evidence or that of substantive law; on the other hand, whether, following its promulgation, the Shariat Act does not itself supersede any prior legislation based on conflict-of-law rules regarding the application of law in time.
Both Roland Wilson and Syed Ameer Ali considered the rules on legitimacy to be of a substantive law nature,Footnote 32 and subsequently that section 112 should not override the provisions of Islamic law. Their approach was followed by the Court of the Judicial Commissioner at Nagpur in 1918.Footnote 33 This view was, however, notably objected to by Faiz Badruddin Tyabji,Footnote 34 who lamented the drafting of the Evidence Act but nonetheless considered Muslim legitimacy provisions to be rules of evidence. He was followed in that regard by the Allahabad High Court in 1926,Footnote 35 later confirmed in 1936.Footnote 36 With section 2 of the Evidence Act having repealed “all rules of evidence not contained in any statute, Act or Regulation” and given the uncodified nature of Islamic law in India, as well as the lack of derogation in favor of Muslim personal law within the Act, section 112 was bound to apply to all classes of Indians irrespective of their personal law. The Lahore High Court followed suit in 1930,Footnote 37 and in London, the Privy Council applied section 112 without even referring to the ongoing debate.Footnote 38
The promulgation of both the Shariat Act in 1937 and, perhaps more importantly, the Amending and Repealing Act 1938—which repealed section 2 of the Evidence Act altogether—seemed to point in turn to the overriding effect of Muslim personal law in relation to legitimacy. While Pakistani courts might be said to have drawn the logical conclusions of such repeal, subsequently considering the rules of Islamic law as having been “revived,”Footnote 39 the Madras High Court opted for a more literal approach. Pointing to the absence of any explicit reference to filiation as a subject matter falling within the ambit of the Shariat Act, the High Court considered the provisions of the Evidence Act as still being applicable.Footnote 40 While currently this may seem to be the dominant position within the Indian judiciary, it does not, however, automatically follow that Islamic provisions are irremediably disregarded.
Indeed, the literal rule of statutory interpretation also applies to section 112, which provides a presumption of legitimacy for “any person born during the continuance of a valid marriage” [emphasis added]. From a very early stage, the term valid marriage has been construed as excluding irregular (fāsid) marriages from the purview of section 112,Footnote 41 while more recently the Kerala High Court came to the same conclusion concerning void (bāṭil) marriages.Footnote 42 Therefore, in the absence of a definitive precedent from the Supreme Court, the relationship between the Evidence Act and Muslim personal law regarding legitimacy can at best be described as intertwined.
Jurisdiction of the Courts
From the 1980s onward, the lack of clear precedent within the field of legitimacy can be partially attributed to a judicial reorganization following the Family Courts Act 1984 and the creation of the family courts. The latter have exclusive jurisdiction over marriage, divorce, and incidental questions relating to suits arising from marital relationships, and proceedings for the declaration of legitimacy.Footnote 43 They also have partial jurisdiction on matters relating to adoption alongside District Courts, City Civil Courts, and Child Welfare Committees,Footnote 44 this due to their competence over guardianship and custody matters. The Family Courts Act insists above all on protecting and preserving the “institution of marriage and the welfare of children,” to this end insisting on resolving disputes through conciliation rather than through formal proceedings.Footnote 45 As such, legal counsel is not required in front of family courts, although counsel is allowed as an amicus curiae.Footnote 46 Subsequently, the courts rarely delve into questions of law, and appeals to High Courts are rare.
Filiation is not however under the complete jurisdiction of family courts, as disputes relating to inheritance—where legitimacy of heirs is often put forward as an incidental question—remain within the general jurisdiction of District Courts, where procedures are more formalized and are also more likely to be appealed. Moreover, in the absence of a clear reference of acknowledgment, issues relating to filiation can also arise in front of a variety of lower courts, such as the Small Causes Court and City Civil Courts. Therefore, while the creation of family courts may certainly have helped in lowering the pending case load of District Courts in most family law matters, it has nonetheless had the dual effect of dividing the jurisprudence relating to filiation into two different procedures and creating a variety of legal fora, thereby resulting in sometimes contradictory judgments.
It must, however, be stressed that despite this divide, issues relating to filiation fall strictly under the competence of the state judiciary. As in many countries with a significant Muslim community, there exist in India multiple forms of extrajudicial conflict-resolution fora, such as dār al-qāḍā’ run under the auspices of various nongovernmental Islamic organizations.Footnote 47 Although the rulings of such entities or the opinions of prominent Muslim jurists (fatwā) can sometimes receive social acknowledgment within a given setting, they are not recognized by the state judiciary (though the latter sometimes can draw inspiration from them).Footnote 48
It is thus under a multiplicity of substantive, procedural, and jurisdictional provisions that filiation amongst Indian Muslims must be assessed and determined. Legal certainty flows in India from legal diversity rather than from uniformity.
Establishment of Filiation among Muslims: The Continuing Importance of a Valid Marriage
Establishment of Filiation by Law
Although the distinction between illegitimacy and legitimacy has somewhat faded among most religious communities in the last decades,Footnote 49 it remains a vivid distinction among Muslims. Indeed, whereas the filiation of a child to his or her mother cannot be disclaimed once she has given birthFootnote 50—save in shīʿa lawFootnote 51—the filiation to his or her father, which subsequently determines the child's status as legitimate or illegitimate and the consequences thereof, is an artificial legal relation which is either presumed, proved, or acknowledged.
Children Born into a Valid Marriage
As mentioned above, the Indian judiciary appears to have positioned itself in favor of the superseding nature of section 112 of the Evidence Act 1872 over the Shariat Act in accord with literal rules of statutory interpretation. Section 112 reads as follows:
[A]ny person born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
Hence, contrary to Muslim law, courts have decided that as long as a child is born within the pursuance of marriage, the time of conception is immaterial to its legitimate status,Footnote 52 and thus the birth does not have to take place within a prescribed period of time after the celebration of marriage.Footnote 53 However, the concealment of a premarital pregnancy is classified as a fraud, therefore rendering the secular rules on the presumption of legitimacy inapplicable.Footnote 54
Whereas the overriding nature of section 112 is based on the absence of explicit reference to filiation in the Shariat Act, it must be read in conjunction with the Shariat Act when filiation is indirectly affected by it. In this regard, given that the presumption put forward by section 112 constitutes “conclusive proof,” it appeared to be in direct conflict with the Shariat Act as the presumption would render liʻān—explicitly identified as a subject matter in the scope of the Muslim personal law—inoperable. Indeed, once established, the effects of legitimacy (and its possible retraction) fall back to Muslim personal law, which does not allow paternal filiation to be disclaimed,Footnote 55 save for liʻān.Footnote 56 With the exception of a lack of access, which is explicitly referred to in section 112, High Courts have considered that no other evidence—notably evidence of adultery and least of all evidence in the form of an oath—would be admissible, as a conclusive proof was deemed to be irrebuttable.Footnote 57 The Supreme Court, however, has recently decided that the results of DNA testing would prevail over the presumption established by section 112,Footnote 58 opening the door to a more harmonized interpretation between section 112 and Muslim personal law.
This is not the only instance where, despite its superseding nature, section 112 is to be read in conjunction with Muslim personal law. Indeed, the definition of what constitutes a “valid marriage” remains within the ambit of personal law, especially since no central statute requires compulsory registration of marital unions.Footnote 59 The issue of legitimacy governed by section 112 is thus more often than not linked to the recognition of a valid marriage, which is governed by Muslim personal law. Under the latter, in the absence of a marriage contract (nikāḥ nāmah) or witnesses attesting to its existence, the marriage can nonetheless be presumed from prolonged cohabitation.Footnote 60 However, it does not follow that the offspring born into such a marriage will be automatically recognized as legitimate, especially in the event of a temporary marriage (mutʻa) accepted under shīʿa law, where judges have required “something in the nature of acknowledgement, either expressly or by conduct, on the part of the reputed father to raise the presumption [of legitimacy].”Footnote 61
Furthermore, while section 112 does provide for a presumption of legitimacy for up to 280 days after a marriage's dissolution, it does not expressly state that a child born beyond this period would necessarily be considered illegitimate, opening the door for Islamic law's own timeline to be applied, which can extend up to four years under the doctrine of the dormant fetus (al-rāqid).Footnote 62 However, section 114 of the Evidence Act 1872 allows the court to presume facts only with “regard being had to the common course of natural events,” and it would thus preclude an unfettered implementation of Islamic provisions in that regard.
Children Born into an Irregular or Void Marriage
Islamic law would, however, fully apply in relation to presumptions proceeding from irregular or void marriages, section 112 mentioning only “valid marriage” as falling within its scope. It thus follows that filiation arising from both irregular (fāsid) and void (bāṭil) marriages are governed by Muslim personal law.Footnote 63
A Muslim marriage is void ab initio if it is prohibited for reasons of consanguinity, affinity, or fosterage,Footnote 64 as well as cases involving a woman whose husband is still living and whose marital ties subsist.Footnote 65 The offspring of such marriages are considered to be illegitimate.Footnote 66
An irregular marriage is one for which the prohibition is not permanent and can be lifted in the future. They include, inter alia, marriages contracted without witnesses, with a fifth wife (while the other four are still alive), or with a woman undergoing her ʻidda (waiting period).Footnote 67 More common in India, however, are marriages contracted with either a non-Muslim man or a woman not belonging to a religion of the book (kitābiyyah, that is, Christian or Jewish),Footnote 68 such irregularity being lifted upon conversion to Islam. Children born out of irregular marriages are considered legitimate,Footnote 69 following the same presumptions as those of a valid marriage under Islamic law.
Contrary to secular law, Islamic law focuses on the time of conception rather than on the date of birth. As such, a child is presumed legitimate only if born at least six lunar months after the date of the marriage. Similar to section 112, this presumption cannot be easily rebutted: the burden of proof in claims relating to illegitimacy rest entirely on the person interested in such a claim, whereby only evidence pointing beyond mere doubt or suspicion will be entertained.Footnote 70
As can be seen from above, Muslim personal law is more often than not very protective of a child's legitimate status, seldom allowing illegitimacy to take hold. Consistent with this inclination, and, further, to the presumptions arising for valid or irregular marriages, Islamic law also provides for filiation to be established through acknowledgment.
Establishment of Filiation by Private Autonomy: The Doctrine of Acknowledgment
Contrary to the presumption of legitimacy—whose classification in evidence law continues to be contentious—acknowledgment has from a very early stage been considered as a part of the Islamic substantive law of succession,Footnote 71 a position that has not been reversed despite not being explicitly mentioned within the Shariat Act. In his famous 1888 judgment, Mahmood J. states the definition and scope of acknowledgment (iqrār bi-l-nasab), which, in the absence of any formal codification, has been followed and further refined by subsequent case law:
So far, it would seem at first sight that an ikrar or acknowledgment stands in the Muhammadan law much on the same footing as an ordinary admission as defined in Section 17 of the Evidence Act; and if the matter rested here, I confess I should have been inclined to regard the question as one appertaining to the province of the law of evidence. But acknowledgments of parentage under the Muhammadan law rest upon a footing higher than that of ordinary admissions as pure matters of evidence. … [The] peculiarity of such acknowledgments, that is, the permanency of their effect when duly made, upon the personal status of the persons in respect of whom such acknowledgments are made, is in itself sufficient to justify the conclusion that the acknowledgment of parentage, though it has reference to evidential presumptions and other considerations, is in effect a rule of personal status in the eye of Muhammadan law … falling within the province of the Muhammadan law of inheritance and marriage.Footnote 72
Being an integral part of the Islamic law of succession, he goes on to reiterate that inheritance is solely based on consanguinity and thus the presumption of paternity through marriage. However,
[a]ccording to Muhammadan law, the acknowledgment and recognition of children by a father as his sons gives them the status of sons capable of inheriting as legitimate sons.Footnote 73
Finally, given the necessity of a blood relation to establish a right to paternal inheritance and the subsequent impossibility of adoption within Muslim law, Mahmood J. limits the scope of acknowledgment to cases where illegitimacy has not been proved:
The Muhammadan law of acknowledgment of parentage with its legitimating effect has no reference whatsoever to cases in which the illegitimacy of the child is proved and established, either by reason of a lawful union between the parents of the child being impossible (as in the case of an incestuous intercourse or an adulterous connection), or by reason of marriage necessary to render the child legitimate being disproved.Footnote 74
This position was further refined by subsequent case law throughout the twentieth century by both colonial courts (including the Privy Council)Footnote 75 and post-Independence Indian courts.Footnote 76
The doctrine of acknowledgment is not a legitimation procedure. As a matter of evidence, the doctrine of acknowledgment is applicable only to marriages that have been neither proved nor disproved.Footnote 77 If the marriage has been disproved, is found to be void ab initio, or the illegitimacy of the offspring has been otherwise established, the acknowledgment can have no effect.Footnote 78 Indeed, it is classified as a presumption and thus may be rebutted by contrary evidence.Footnote 79
There had been some confusion whether an acknowledgment of paternity would prima facie be considered as an acknowledgment of legitimacy.Footnote 80 However, it now seems settled that although the acknowledgment may be either explicit or implied by one's actions, it must show the acknowledger's intent to accept the child not only as his offspring but, moreover, as his legitimate offspring.Footnote 81 In the same vein, in accord with the notion that acknowledgement of legitimacy constitutes the establishment of blood relations, it has further been decided that “it must not be made when the ages are such that it is impossible in nature for the acknowledge or to be the father of the acknowledge,”Footnote 82 which, according to Neil Baillie corresponds to a minimum age gap of twelve and a half years.Footnote 83
For the Indian judiciary, an acknowledgement once established cannot be revoked,Footnote 84 and it confers on the acknowledged child the same rights as that of any other legitimate offspring.Footnote 85
Effects of Filiation or a Lack Thereof
Similar to its establishment, the effects of filiation among Indian Muslims are governed by Muslim personal law in conjunction with other secular provisions. The secular provisions will notably come into play in the presence of either a defective or unknown filiation.
Effects of Legitimate Filiation
The primary effect of a legitimate filiation consists in the right of the children to take up their father's name, which still has a significant social importance in India. Subsequently, the personal law of the child will also be that of his or her father.Footnote 86 More prosaically, however, one of the main aspects of the establishment of a legitimate filiation is a financial one, first in terms of maintenance during the child's minority, secondly in relation to his or her right to inheritance.
Within Muslim personal law, the duty of maintaining a child rests primarily on the father, “and no person can be his associate or partner in furnishing it.”Footnote 87 The duty lasts until a son attains his majorityFootnote 88 or a daughter is married,Footnote 89 provided neither have independent revenue of their own.Footnote 90 This obligation is not only a personal one, encompassing instead the entirety of the father's property “in such a way that it can be enforced even against an alienee of the father.”Footnote 91 Similarly, however, it is the duty of a legitimate son to maintain his parents.Footnote 92
Furthermore, the father's duty of maintenance continues when the children are under the custody of their mother during the period of ḥaḍāna (nurturing period, generally until seven years old for a boy, and until puberty for a girl),Footnote 93 although High Courts have subsequently fluctuated as to whether, following a divorce, the father would still be liable to maintenance in the event his children did not want to live with him.Footnote 94 Following the enactment of the Muslim Women (Protection of Rights on Divorce) Act 1986, some fathers have attempted to argue that their duty of maintenance could be offset by section 3(1)(b), which provides for only two years of maintenance for women caring for children, notwithstanding any other law in force. However, this interpretation was rejected by the High CourtsFootnote 95 and, more recently, by the Supreme Court, which has definitely settled that under both personal law and secular provisions the father's duty to maintain his children is absolute, irrespective of the latter's residence, provided he has sufficient means.Footnote 96
Disabilities Linked to Illegitimate Filiation
Although under Muslim personal law illegitimate children have no claim to maintenance,Footnote 97 they can, however, make recourse to secular legislation to enforce such a right. Indeed, the Code of Criminal Procedure 1973 offers a remedy to illegitimate children by allowing the courts to order a person with sufficient means to provide maintenance for both legitimate and illegitimate minor children.Footnote 98 The Supreme Court has confirmed such legal avenue for illegitimate Muslim children.Footnote 99 However, as the father is not the natural guardian of an illegitimate child, the child will take the name of his or her mother and be governed by her personal law.Footnote 100
Nevertheless, while Indian secular legislation may have remedied certain disabilities in relation to illegitimacy for Muslim children, the latter remain barred from any claim to paternal inheritance, even though the right to maternal succession is open to them. Indeed, the Allahabad High Court, although recognizing, according to Baillie, that
The wulud-ooz-zina, or illegitimate child, has no nusub or parentage. Consequently, neither the zanee, or he who has unlawfully begotten, nor she who bore him, nor any of their relations, can be his heir, nor has he any title to their succession. His inheritance, therefore, is only for his own childrenFootnote 101
Bhargava J. upon reading the above passage with another from the same Digest according to which “the residuaries of a wulud-ooz-zina and the son of an imprecated woman are the moowalees of their mothers; for they have no father, and the kurabut, or kindred of their mother inherit to them, and they inherit to them,”Footnote 102 came to the conclusion that “under Hanafi law of Inheritance, an illegitimate child can inherit from his mother and her relations.”Footnote 103
Suspended Effects of Filiation in the Case of Voluntary Surrender of the Child
Although not severing the filiation between a child and his parents, the Juvenile Justice (Care and Protection of Children Act) 2015 (hereafter the JJ Act 2015) provides for his or her surrender to a child welfare committeeFootnote 104 due to “physical, emotional and social factors beyond their [the guardians’ or parents’] control.”Footnote 105
After inquiry, the parents or guardians will execute a surrender deed before the child welfare committee, following which the child will be placed either in a specialized adoption agency if under six years old or in a children's home.Footnote 106 Following such placement, although filiation is not extinguished, the responsibility for the care (including maintenance) of the child rests upon the Indian state through the child welfare committee.
Although the surrendered child may be subsequently declared legally free for adoption,Footnote 107 the principle underlying the care of surrendered children is, nonetheless, one preferring a restoration to their parents,Footnote 108 be it with supervision or through a sponsorship program.Footnote 109
Protection and Care for Abandoned Children with an Unknown Filiation
The protection and care for abandoned children with unknown filiation is similarly governed by the JJ Act 2015. Children who have been found in need of care can be produced in front of the child welfare committee,Footnote 110 which will place them in either a specialized adoption agency, a children's home or foster care.Footnote 111 The child welfare committee is also bound in the case of an abandoned child to “make all efforts for the tracing of the parents or guardians of the child,” and only upon an unfruitful inquiry can it declare the child “legally free for adoption.”Footnote 112
The religion, and thus the personal law, of the child—if known—is of little importance in this process. Whereas the Adoption Regulations 2017 prioritize the “socio-cultural environment” of the child in cases of adoption,Footnote 113 and the JJ Act 2015 admits inter-country adoption only when no prospective Indian adoptive parent can be found,Footnote 114 adoption by both relatives and other Indian nationals can be achieved “irrespective of their religion.”Footnote 115 A Muslim child can thus be adopted by non-Muslim adoptive parents under the Act.
It must be recognized, however, that despite this relatively new legal framework, abandoned children in India are, in practice and in the vast majority of cases, living in dire conditions. Although some nongovernmental organizations have put forward the number of nearly twenty million orphans or abandoned children in India,Footnote 116 only a fraction of those declared legally free for adoption are effectively adopted.Footnote 117 In addition to the cumbersome legal procedure,Footnote 118 a recent and scathing Supreme Court order has pointed out the inefficiency of the Indian government in even producing data relative to the children under its care:
We have been given to understand that there is no data base of all the child care institutions in the country. State Governments have not even validated the available data or undertaken the mapping of child care institutions in collaboration with the Union Government. This is an essential first step since it is difficult to imagine how children in child care institutions can be cared for if there is no record of the number of institutions, number of children in such institutions, relevant information regarding the children etc.Footnote 119
Lokur J.’s remarks echo a long-standing position of the Supreme Court in establishing guidelines in favor of adoption, an approach that ultimately opened the possibility for Indian Muslims to adopt, irrespective of Muslim personal law.
The Issue of Adoption among Indian Muslims
For a very long time, adoption in India has been without a proper general legal framework. Indeed, although the practice is very well entrenched among Hindus,Footnote 120 for whom the Hindu Adoption and Maintenance Act 1956 was enacted, other communities had to fall back on piecemeal legislation, custom, and other personal-law provisions. After the rejection of the Adoption of Children Bill 1980, which in any case did not intend to apply to Muslims, it fell on the Supreme Court to issue guidelines—mainly regarding intercountry adoption.Footnote 121 In accord with the Hague Convention on the Rights of the Child,Footnote 122 the Indian Law Commission took up the matter of intercountry adoption,Footnote 123 which made its way into the Juvenile and Justice (Care and Protection of Children) Act 2000, legislation that was further amended in 2006Footnote 124 and finally repealed and replaced by the Juvenile and Justice (Care and Protection of Children) Act 2015, within which the subject matter of adoption is now contained in a separate chapter.Footnote 125
It is thus through the lens of intercountry adoption that a general secular framework has progressively been put in place in India itself. However, the question of whether this framework would supplement personal law provisions remained uncertain regarding MuslimsFootnote 126 until the Supreme Court decided in favor of such a supplementary effect in 2014.Footnote 127
The Difficult Recognition of Customary Adoptions among Muslims and the Question of Filiation
Although the prohibition of adoption within Islamic law has consistently been upheld by Indian courts,Footnote 128 adoption's existence as a matter of customary law among Indian Muslims has been nonetheless progressively recognized. Indeed, colonial legislation had specifically allowed such custom to be acknowledged in given communities or territories, while the Shariat Act did not render adoption a topic subject to Islamic law's overriding nature in the absence of a voluntary declaration to that effect.Footnote 129 As such, different High Courts have subsequently accepted that the Shariat Act did not totally abrogate custom, notably in terms of adoption,Footnote 130 with the burden of proof resting nonetheless on the claimant who requests its application, thereby entailing in particular the obligation to demonstrate long-standing and continuous practice.Footnote 131
Despite its validity, the nature of such customary adoption remains contentious. Indeed, a customary adoption does not necessarily create a relationship that would revert to Islamic norms in terms of filiation or inheritance. For example, it was held that although customary adoptions could be recognized in the Kashmir Valley in the form of pisar parvardah (adopted son), the latter would “not [be] transplanted in the family of the adopter. He has no right of collateral succession so on and so forth. He can inherit only [from] his adopting father.”Footnote 132 Similarly, the Supreme Court held that custom among Punjabi Jats allows for either formal or informal adoptions, the latter amounting to “a mere appointment of an heir, the appointed heir is not entitled to succeed to the collateral relatives of the adopted father.”Footnote 133 On the other hand, a formal adoption would replace the existing filiation of the adoptee with that of his or her adoptive father.Footnote 134
Therefore, customary adoption among Indian Muslims, apart from being sometimes difficult to prove, can also lead to a wide array of legal effects, whereby filiation vis-à-vis the adoptive parents is far from being automatically established. In the absence of a general secular law of adoption, it was, however, the only possible legal avenue for Indian Muslims wishing to adopt a child, barred as they were by the prohibition of Muslim personal law.
Adoption through Secular Legislation
The enactment of the Juvenile Justice (Care and Protection of Children) Act 2000 (hereafter JJ Act 2000) offered for the first time a secular framework upon which Indian citizens could adopt a child without relying on the provisions already in place through personal law.Footnote 135 The question that soon arose, however, was whether this secular statute could be accessed by Indian Muslims otherwise governed by Muslim personal law, which allows only a certain type of guardianship (kafālah) as means to secure the care of an orphaned, abandoned, or illegitimate child, but which does not create any form of filiation with his or her guardian.
The issue came before the Supreme Court through a public interest litigation, which provoked intense scrutiny and a staunch defense—notably by the All India Muslim Personal Law Board—of the prohibition of adoption within Islamic law.Footnote 136 Without rejecting such prohibition, the three-judge bench with Sathasivam CJ pointed to the enabling nature of the JJ Act 2000, similar to that of the Special Marriage Act 1954, which does not alter or abrogate Muslim personal law but rather allows for a choice of law in certain subject matters. Writing for the Court, Gogol J. thus states,
The Act does not mandate any compulsive action by any prospective parent leaving such person with the liberty of accessing the provisions of the Act, if he so desires. Such a person is always free to adopt or choose not to do so and, instead, follow what he comprehends to be the dictates of the Personal law applicable to him. … At the cost of repetition we would like to say that an optional legislation that does not contain an unavoidable imperative cannot be stultified by the principles of personal law.Footnote 137
In opening the possibility of adoption to prospective Muslim parents, the Supreme Court nevertheless stayed silent on the consequences for the adoptive child's personal law, the “adoptive parents [becoming] the parents of the child as if the child had been born to the adoptive parents, for all purposes, including intestacy.”Footnote 138 Will the newly created filiation between parent and child be governed by the parent's personal law? It is obviously too early to offer definitive conclusions, but the analogy that the judgment draws between the JJ Act 2000 and the Special Marriage Act 1954 would suggest that, as inheritance is concerned, the Indian Succession Act 1925 should be applicable in lieu of Muslim personal law.Footnote 139
In any event, the Supreme Court stops short of including adoption within the fundamental right to life,Footnote 140 thus perpetuating the constructive ambiguity surrounding the status of Muslim personal law within the Indian legal order.Footnote 141 As such, the recognition of filiation through adoption (other than customary adoption) among Indian Muslims can be done only through what is now the JJ Act 2015, and lower courts have shut the door to any other type of adoption otherwise available, such as one based on humanitarian grounds.Footnote 142
Conclusion
Despite the goal of creating a secular uniform civil code, filiation among Muslims in India is still by and large governed by Muslim personal law, a largely uncodified corpus of key Islamic legal treatises and textbooks dating mainly from the Mughal era that have subsequently been interpreted and applied through the common law framework of British colonial justice and the post-Independence Indian judicial system under the lens of the Muslim Personal Law (Shariat) Application Act 1937. Insisting on blood relations, Muslim personal law thus recognizes legitimate filiation as resulting only from a valid or irregular marriage between the parents of a child, thereby both barring illegitimate children from maintenance and intestate succession and prohibiting adoption.
However, given both the subcontinent's colonial past and the newly founded Indian republic's secular nature, a number of legislative enactments have modified key aspects of the law of filiation among Muslims. The Evidence Act 1872 has shifted the presumption of legitimacy arising from a birth within a valid marriage to the time of the wedding—rather than the time of conception—and has invalidated the doctrine of the dormant fetus. Nonetheless, provisions of Muslim personal law still apply to presumptions associated with an irregular or void marriage and regarding acknowledgment, which creates a degree of ambiguity in terms of legal certainty. Further, whereas the Code of Criminal Procedure 1973 has lifted the disability incurred by illegitimate children in relation to maintenance, the bar against paternal intestate succession remains in place.
India thus seems largely on par with other Muslim-majority jurisdictions, which have continued to put an emphasis on the existence of a valid marriage to establish paternal filiation and which, albeit while lifting some of the material discrimination facing children without a proper nasab, have remained hesitant to reform Islamic law in ways that would enforce equal treatment for legitimate and illegitimate children. Moreover, despite the increasing influence of the state in reshaping filiation among Muslims, the result has not translated into more uniform or centralized rules; rather, it has led to an increase in normative pluralism and, following the creation of family courts, a growing jurisdictional pluralism that, to a certain extent, can lead to forum shopping. Unlike most other jurisdictions, however, India has moved in recent years to establish a secular legal path to adoption that is available to Muslim parents, thus opening a new avenue for Muslims to opt out of their personal law without the cumbersome and haphazard procedures linked to customary law. Further research would be required to assess developments in practice.
The minority status of Indian Muslims and their prolonged cohabitation with a Hindu majority have rendered the custom of adoption, otherwise prohibited under Islamic law, somewhat common on the subcontinent. Yet while such adoptions based on customary law may indeed have been recognized by the courts, their effects are for the most part different from those within Hindu personal law. Indeed, even where they lift the bar against paternal inheritance, they seldom create any filiation with the adoptive family. Following the enactment of the Juvenile Justice (Care and Protection of Children) Act 2000 and its subsequent amendments, an optional secular legal framework for adoption is now available to Muslim prospective parents. However, its effects on the filiation of the child are still for the most part untested. The procedure set forth by the Act is unwieldly and faces the very practical difficulties of the state having to manage and protect a vast number of destitute and abandoned children in India.
