Islamic Law

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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.

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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.

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