Parentage and Adoption under Muslim Law

1. Table of Contents

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   Introduction

The institution of parentage (nasab) and adoption (tabanni) under Muslim law has deep moral, social, and religious roots.
Parentage determines a child’s status, rights, and identity, while adoption concerns the care and upbringing of a child who is not biologically one’s own.

However, unlike Hindu law, Islamic law does not recognize adoption in the legal sense of creating a new parent-child relationship.
Islam strictly differentiates between natural lineage and emotional guardianship — protecting both the child’s welfare and the biological family’s identity.

2. Parentage (Nasab) under Muslim Law

Meaning and Importance

The Arabic term nasab refers to lineage, descent, or blood relationship. Under Muslim law, parentage refers to the legal relationship between a child and their parents.

(The rules regarding Parentage is slightly different between SUNNI & SHIA schools of law.)

Parentage determines:

• The identity of the child,
• The rights and duties between parent and child,
• The lawful heirs for inheritance, and social status,
• The legitimacy of the child under Muslim law.

Parentage has two components:-

Paternity Under Muslim Law [Relation to the father]

• Paternity is more complex and is governed by rules of legitimacy. A child must be born of legitimacy. A child must be born from a valid marriage (nikah) or Under specific circumstances allowed by law to be considered legitimate.

Maternity Under Muslim Law [Relation to the Mother]

• Maternity (i.e., who the mother is) is generally straightforward and established by birth.
• The woman who gives birth to the child is considered the mother.
• There is rarely any dispute over maternity unless surrogacy or adoption is involved.

3. Establishment of Parentage

Parentage in Muslim law is mainly established through:

(A) Lawful Marriage (Nikah)

When a child is born to a married couple, the law presumes legitimacy if:

• The parents were lawfully married at the time of conception or birth, and
• The period between marriage and birth is at least six lunar months.

This presumption of legitimacy (walad-ul-firash) is one of the strongest in Muslim law.

“The child belongs to the marriage bed, and the adulterer has no claim.”
(Hadith – Sahih al-Bukhari)

Thus, a child born within wedlock is legitimate, even if the marriage was later dissolved.

(B) Valid or Irregular Marriage

If the marriage is valid (sahih) — full legitimacy arises.
If it is irregular (fasid) — legitimacy is recognized if the marriage was later validated and the parents cohabited honestly.
But if the marriage is void (batil) — no legitimacy arises, and the child is considered illegitimate.

(C) Acknowledgment (Iqrar) Under Muslim Law

Muslim personal law does not recognize adoption in the hindu sense but permits a man to acknowledge a child as his own, known as “Ikrar” of legitimacy or Paternity.

It serves as a way to confer legitimacy and inheritance rights when biological paternity is uncertain or disputed.

Acknowledgment of Paternity (Iqrar)

Acknowledgment of paternity (Ikrar – a – nasab) by a person means that he has accepted himself as a father of child where the legitimacy of a child is neither proved nor disapproved. Even without proof of marriage, a man can establish parentage by acknowledging a child as his own.

The acknowledgement of paternity by a person may establish the existence of a valid marriage and also the legitimacy of child.

But where a child is illegitimate either because it is born out of adultery or prohibited marriage the acknowledgment cannot make the child legitimate.

Express & Implied acknowledgement:

Conditions of a Valid Acknowledgement:-

1. Child must be unknown paternity:-

If the child’s father is known, acknowledgement is invalid.

2. Child must not be the result of the zina( illicit sextual relation):- Acknowledgement cannot legitimize a child born out of adultery or fornication.
3. Man must not be in a prohibited degree with the mother:- Acknowledgement is not a valid if the man could only have lawfully married the mother (e.g., she is his sister, aunt, etc.)
4. Age difference must be atleast 12.5 years:- there must be a plausible biological possibility of fatherhood.
5. Child must not deny the acknowledgement :- If the child is of age of majority and denies the paternity, the acknowledgment fails.
6. No evidence to the contrary:- If conclusive proof exists that the man cannot be the father (e.g., medical proof of sterility), the claim is invalid.
7. Acknowlegement must be voluntary and clause:- It should be made freely and without ambiguilty.
8. Acknowledger must be a muslim, major and of sound mind :- A minor or Insane person cannot make a valid acknowledgement.

The child must get all the right of inheritance.

Legal effects:-

• A valid acknowledgement gives the child the status of legitimacy and the right to inherit from the father.
• Acknowledgement of a child’s paternity also establishes a lawful marriage between the child’s mother and the acknowledger.

Once made and accepted, acknowledgement cannot be revoked by acknowledger.

• Maintenance- child entitled to take maintenance.
• Lineage and Lineage rights.
• Name and Patronage.

Example:

If a man acknowledges a boy as his son, and the boy could have been born in lawful wedlock, the acknowledgment is valid.

However, acknowledgment cannot legitimize an illegitimate child where adultery is evident.

4. Legitimacy of Children Under Muslim Law:

• Under Sunni Law :

(A) Legitimate Child

A child is legitimate if: Paternity

1. The child is born atleast 6 months after the marriage,
2. The child is born within 2 years of the dissolution of marriage ( divorce or death), assuming no remarriage of the mother.

• If this conditions are met, paternity is automatically presumed.

(B) Illegitimate Child (Walad-uz-Zina)

An illegitimate child is one born outside lawful wedlock — a product of fornication (zina).
Islamic law does not deny such a child’s right to life or dignity but restricts inheritance and lineage to protect legitimate family ties.

• The child is legally related only to the mother, not to the father.
• He/she can inherit from the mother but not from the putative father.
• Do not carry the father’s name.

• Under Sunni Law :

(A) Legitimate Child

A child is legitimate if: Paternity

1. The child is born atleast 6 months after the marriage,
2. The child is born within 10 lunar months (approx 295 days) after the dissolution of marriage.

• Shia law is stricter in not recognizing paternity if there is any doubt or lack of a valid marriage.

(B) Illegitimate Child (if not born out of a valid marriage)

• Same as in Sunni law, they are only related to the mother and have no rights against the father.

• Legitimacy under Indian Evidence Act, 1872 :

• According to the section 112 of IEA, if a child is born during the marriage of within 280 days after the dissolution of marriage, the child shall be presumed to be the legitimate child of the spouses.

The IEA supersedes the rule of muslim law. The question arises whether the provision of IEA supersedes the provisions of Muslim law.

Case Law: A.G. Ramchandran V. Shamsunnisa Bibi (1977)

Madras high court has held that sec. 112 of Indian Evidence Act is very general in its terms and its applies to all persons including mohammedans who may have a personal law of their own relating to legitimacy as there is no provisions exempting them from the application of sec 112.

5. Proof of Parentage

Parentage can be proved through:

1. Marriage certificate or proof of wedlock.
2. Acknowledgment by the father (Iqrar).
3. Testimony of witnesses.
4. Circumstantial evidence — like cohabitation or continuous recognition.

Under modern law, DNA testing may be used in disputed paternity cases, though Islamic courts caution against its use to override established presumptions of legitimacy.

6. Legal Consequences of Parentage

Once parentage is established, several legal rights and duties arise:

1. Right to Inheritance – A legitimate child inherits from both parents.
2. Right to Maintenance (Nafaqa) – The father must maintain the child.
3. Right to Guardianship (Wilayah) – The father is the natural guardian.
4. Right to Custody (Hizanat) – The mother has custody until a certain age.
5. Right to Name and Identity – The child must bear the father’s lineage.

Thus, nasab forms the foundation of a Muslim child’s personal and property rights.

7. Adoption (Tabanni) under Muslim Law

(A) Meaning

The Arabic term Tabanni means to take someone as one’s child.
However, Islamic law does not recognize adoption in the legal sense of transferring biological parentage.

Under Muslim law, adoption does not create a parent-child relationship with rights of inheritance, guardianship, or legitimacy.
It only establishes a relationship of care and affection, not of blood or lineage.

(B) Quranic Basis

The practice of legal adoption was abolished in Islam through the Qur’an.
In pre-Islamic Arabia, adopted sons were treated as biological sons, with full inheritance rights and name affiliation.

To end this confusion of lineage, Allah revealed:

“Allah has not made your adopted sons your [real] sons. That is but your saying by your mouths. But Allah tells the truth, and He guides to the right way.”
(Surah Al-Ahzab, 33:4)

“Call them by [the names of] their fathers; that is more just in the sight of Allah.”
(Surah Al-Ahzab, 33:5)

Hence, an adopted child retains his biological identity and cannot assume the lineage (nasab) of the adoptive father.

(C) Legal Effect of Adoption

Under Muslim law:

• Adoption does not create the status of a real son or daughter.
• The adopted child does not inherit from the adoptive parents.
• The adoptive parents are not legal guardians by default.
• The adopted child must retain the biological surname and lineage.

However, Islam encourages fostering (Kafala) — caring for orphans and needy children — as a noble act of compassion.

“They ask you about the orphans. Say: Improvement for them is best.”
(Surah Al-Baqarah, 2:220)

Thus, while legal adoption is not permitted, emotional and financial guardianship is highly meritorious.

8. Kafala: Islamic Alternative to Adoption

The concept of Kafala (sponsorship or guardianship) allows Muslims to take care of orphaned or destitute children without altering their lineage.

Under Kafala:

• The child is raised, educated, and maintained by the guardian.
• The guardian is not treated as the legal parent.
• The child retains his/her biological parentage.
• The child may inherit only through will (wasiyat) — up to one-third of the guardian’s estate.

This system ensures both care and identity protection — fulfilling the humanitarian purpose of adoption without violating lineage laws.

9. Comparison Between Adoption and Kafala

10. Adoption under Indian Law and Muslims

In India, adoption among Muslims is governed not by personal law but by secular statutes.

(A) Hindu Adoptions and Maintenance Act, 1956

This Act applies only to Hindus, Buddhists, Jains, and Sikhs — not to Muslims.
Hence, a Muslim cannot adopt under this Act.

(B) Guardians and Wards Act, 1890

A Muslim may take a child under this Act as a guardian, not as a parent.
Such a child is called a ward, not an adopted son or daughter.

• The guardian can care for the child’s welfare, education, and upbringing.
• However, the relationship ends once the ward attains majority.
• No inheritance rights are created between them.

(C) Juvenile Justice (Care and Protection of Children) Act, 2015

The Supreme Court in Shabnam Hashmi v. Union of India (2014) 4 SCC 1 held that:

“Any person, irrespective of religion, is entitled to adopt under the Juvenile Justice Act.”

Thus, Muslims in India may adopt under the JJ Act if they choose — it’s a secular option, distinct from religious law.

However, such adoption remains civil in nature and not part of Muslim personal law.

12. Conclusion

Under Muslim law, parentage (nasab) forms the foundation of a person’s identity, inheritance, and rights.
It is sacred and cannot be altered by human intention.
Adoption (tabanni), as understood in modern law, is not recognized because it confuses lineage and inheritance.

Instead, Islam promotes Kafala — the care, protection, and upbringing of children without violating their biological identity.
It ensures compassion without distortion of truth.

In essence, Islamic law upholds both mercy and justice:
it preserves the sanctity of blood ties while commanding believers to embrace humanity through guardianship, charity, and love.

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