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The doctrine of acknowledgement

A Abedin |

Adoption comes from the heart, but the adoption process comes from the law. You should follow your heart, but be sure you also follow the law” – Irina O’ Rear, Member of International Bar Association, St. Petersburg, Russia Undoubtedly this is the crucial characteristic of the law of adoption.

If a person wishes to adopt a child, it is a creditable intention but one which could unfavourably effect or even spoil a child’s life. That is why a process of adoption is regulated by the sovereign.

Adoption in its dictionary meaning is the act by which relation of property and affiliation are recognised as legally existing between persons not so related by nature. The effect of adoption was to cast succession in the adopted in case the adoptive father died intestate. In a word, adoption is an act of becoming the legal parent of a child which is not your own.

During the pre-Islamic days i.e. before 7th Century AD, popularly known as the ‘Days of Ignorance’ among the pagan Arabs, the system of adoption was in existence and it was closely connected with their religious ideas – “having relation to the repose of the soils of the departed and the preservation of the household divinities.”

Subsequently the Romans and the Hindus followed the method of adoption and it became a customary law among the Hindus and the Romans. In India, the growth of the law and custom of adoption was mainly to be found in the ancient Hindu belief that a son was necessary for the heavenly redemption of the father and of the antecedents.

In old Hindu law there were five kinds of adopted sons, such as the Krita (the son bought), Apaviddha (the deserted son), Svayadath (the son self given), Kritrima (the son made) and Dattaka (the adopted son who is seen as the reflection of the natural son). Out of the five kinds of adopted sons only two endure today – namely (i) the Dattaka form which is widespread throughout India and (ii) Kritrima form which is caged in Mithila and adjoining districts.

At present, in India amongst the Hindus, customary adoptions have been abolished by the Hindu Adoption and Maintenance Act, 1956. An easy process of adoption and the protection of the rights of both the adopter and the adopted have been introduced by this Act.

However, one thing we should have to remember is that under Hindu law, adoption is primarily a religious consideration relating to spiritual welfare of the adoptive father after death and the devolution of property is only of secondary importance and it is the secular aspect of the process of adoption. Now I am going back to the 7th Century AD.

Prophet Muhammud, the founder of Islam, in the beginning of his life followed the custom of adoption as practiced by the polytheistic Arabs and even he himself adopted Zaid, the son of Haris. But when he realised that this sort of practice could not establish genetic relationship between the adopted and the adopting, he disapproved this method of adoption.

Subsequently the Prophet expressed the higher ideas of domestic relationship through simple ikrar or acknowledgement and, according to him, adoption created no such tie or bondage between the adopted and the adopting as resulted from blood relationship. Consequently, the Muslim community began to follow this principle of the Prophet and disregarded the custom of adoption as mode of filiation.

Hence Mohammedan Law does not recognise the validity of any mode of filiation and accordingly an adopted child (Mutabanna) has no right in the property of his or her adoptive parents. It is merely a reception of a person into the adoptive father’s family.

Thus amongst the Mohammedans, Christians and Parsis no adoption is recognised by their personal laws. Before passing the Adoption of Children Act, 1926, adoption was even unknown to English law.

By this Act Courts were given power to make adoption orders in respect of infants upon the application of a single persons or married couple, subject to certain restrictions as to age and sex of the applicant and to the consent of the infant’s parent or guardian.

However, the only form of filiation which is recognised by the Mohammedan Law is the one which is created by acknowledgement. Here acknowledgement means a recognition of something as being bonafide. But this acknowledgement may be formal or informal. Formal acknowledgement is one where the father’s recognition of a child as his own is by a formal written declaration that meets a state’s requirements for execution, typically by signing in presence of two witnesses. It may be called as acknowledgement of paternity.

On the contrary, in an informal acknowledgement a father’s recognition of a child as his own is not by a written declaration but by receiving the child into his family or treating the child as his own offspring. It is pertinent to mention here that in Mohammedan law in the doctrine of acknowledgement there is no religious consideration, such as spiritual salvation of the adoptive father and of the ancestors as we find in Hindu Law.

It is merely a reception of a person into the adoptive father’s family and there is no heavenly benefit for the adoptive family. Even a Hindu converted to Islam cannot adopt.

According to Mohammedan Jurisprudence, an adoptive member of a Muslim family does not take away the status and social position which such member possesses in the family of his birth.

Moreover, he and his son have the right to succeed to property in that family which he would have inherited under normal course. The aforesaid principle of acknowledgement in Mohammedan law had been followed by the Privy Council in Annie Besant case in the year 1914.

In the said case regarding the principles relating to the rights of a father over his children during their minority, the Privy Council observed as follows:- “Father is the natural guardian, he cannot divest himself of that duty or substitute another in his place. His duty is in the nature of a sacred trust. He may, in the exercise of his discretion delegate his authority to another, such as, a tutor or school master or a friend, entrust the education and custody of his children to that other on such terms as he deems fit and such delegation is revocable”.

Now the question arises as to who can acknowledge a person and what are the essential conditions of valid acknowledgement. According to Mohammedan Jurisprudence, the person acknowledging must have the legal capacity of entering into a valid contract. He must be adult, a sensible and untrammeled. One who has not attained the age of puberty has no right to make an acknowledgement.

Moreover, the following three conditions have been imposed to render the acknowledgement valid and effective: i) In order to establish the relationship of father and son between himself and another, the acknowledger (adoptive father) must be at least twelve and half years older than the acknowledged (adoptive son). ii) The person acknowledged must be of unknown paternity (Majhul-unNasab) at the place of his birth or at the place where he is residing.

If the parentage is known to belong to somebody else, no ascription can take place to the acknowledger. iii) The acknowledged i.e. the adoptive son or daughter must believe himself or herself to be the acknowledger’s i.e. adoptive father’s child, and at all events accede to the fact. But according to Hedaya this assent is not necessary in the case of an infant or one who has not reached the age of puberty.

In fact, the doctrine of acknowledgement is an intrinsic part of the family law of the Muslim community and the conditions under which it will take effect must be decided according to Mohammedan Jurisprudence. The mere allegation of acknowledgement is not sufficient to establish the relationship. According to Hedaya, acknowledgement can also establish certain other relationships besides parentage, and in each case there is no difference between an acknowledgement made by a man and that made by a woman.

For instance, an unmarried woman or a widow can create the relationship of mother and child between herself and another person by a simple ikrar or acknowledgement.

Moreover, a person may acknowledge another as his or her father or mother, or husband, or wife, and such acknowledgement, if approved or confirmed by the acknowledged, whether during the life time of the acknowledger or after his or her death, would establish a valid relationship with regard to their involvement or entanglement.

In this respect, I quote here the enunciation of Justice Mahmood which is apt and appropriate: “- although, according to Mohammedan Law, ikrar or acknowledgement in general stands upon the same footing as an admission as defined in the Evidence Act, acknowledgements of parentage and other matters of personal status stand upon a higher footing than matters of evidence, and form a part of the substantive Mohammedan Law”.

(The writer is a freelance writer and Advocate, Calcutta High Court)