Out-of-Wedlock Children in Islam: Their Status

Wael Abdelgawad | Zawaj.com

Happy babyMany Muslims believe that any child born out of wedlock has no relationship whatsoever with the father. That the child cannot take the father’s name, cannot inherit from the father, and receives no financial support from the father.

This is all true only if the parents are not in a common-law relationship equivalent to marriage; and if the father does not acknowledge paternity and does not live with the mother.

Let’s look at a situation in which the father does acknowledge paternity. The scholars have disagreed on the matter in this case, but one opinion outweighs the other.

Claiming Paternity

Some scholars are of the view that the out-of-wedlock child is not to be attributed to the zaani (fornicator), even if he acknowledges him and wants to attribute the child to himself; rather the child is to be attributed to his mother only.

Other scholars are of the view that if the zaani wants to attribute his out-of-wedlock child to himself, then the child should be attributed to him. This was also the view of some of the salaf (early generations) and was narrated from Imam Abu Haneefah.

The scholars at IslamQA.com say that the view that the out-of-wedlock child is to be attributed to the zaani if he wants to acknowledge him and if the mother was not married to any other man, is more correct, and Allah knows best. It was the view favoured by Shaykh al-Islam Ibn Taymiyah (may Allah have mercy on him) and his student Ibn al-Qayyim. See: al-Ikhtiyaaraat al-Fiqhiyyah (p. 477) and Zaad al-Ma‘aad (5/374).

Ad-Daarimi narrated in his Sunan (3106) that Sulaymaan ibn Yasaar said: If a man claims that a boy is his son and that he committed zina with the mother, and no one else claims that boy as his, then he may inherit from him.

Ibn al-Qayyim said: Rationally speaking, the father is one of the two parties involved in the act (of zina), and as the child is attributed to his mother and she may inherit from him and he may inherit from her, and the blood relationship is established between him and the mother’s relatives, even though she bore him as the result of zina and the child was the product of the water of both parties and they both agreed that he is their child, why shouldn’t the child be attributed to him if there is no other man who claims to be this child’s father? This is based purely on rational thinking.

So if the father acknowledges paternity of the child, he is considered the father’s child with all the rights and obligations that entails.

Owner of the Bed

Baby sleeping in a shoeIn a separate issue, if the man and woman are in a relationship where they live together – even if they are not married – then the child is considered to belong to that man, as the Messenger of Allah (sws) said, ‘The child belongs to the owner of the bed, and the stone is for the adulterer.’ [Al-Bukhaari and Muslim].”

Also understood from this hadith is that a child born to a married couple is considered to be that couple’s child and is attributed to the husband, even if there was some suspicion of adultery, or even if the mother was raped by someone else. This is best for the stability of the family and the well being of the child, who is innocent in the situation.

On the other hand, the scholars have said that if the relationship was a mere love affair (boyfriend-girlfriend); and the father denies paternity; then the child is not attributed to that man and he does not have to spend on him. The child is attributed to his mother.

DNA Testing

Dna strand

DNA

There are situations where DNA testing could be used to determine parentage, and therefore to accord the child his paternal rights, such as when the couple are unmarried and there is some doubt or question about paternity.

Many Islamic scholars have been slow to acknowledge the possibilities of DNA testing in fiqh. This matter should be seriously considered and studied by a group of scholars. After all, Allah encourages us to learn and use our minds, and to develop new understandings of the world:

“In the creation of the heavens and the earth and the alternation of the night and day are signs for those of understanding.” (Quran 3:190)

Zawaj.com Editor Update: I spoke to a local scholar and former professor at Al-Azhar University, Dr. Khalil Gharib, who said that DNA testing can indeed be used to determine paternity in Islam. He reminded me of an incident regarding Umar ibn al-Khattab (RA):

Malik related to me from Yahya ibn Said from Sulayman ibn Yasar that Umar ibn al-Khattab used to attach the children of the Jahiliyya to whoever claimed them in Islam. Two men came and each of them claimed a woman’s child. Umar ibn al-Khattab summoned a person who scrutinized features and he looked at them. The scrutinizer said, “They both share in him.” Umar ibn al-Khattab hit him with a whip. Then he summoned the woman, and said, “Tell me your tale.” She said, “It was this one (indicating one of the two men) who used to come to me while I was with my people’s camels. He did not leave me until he thought and I thought that I was pregnant. Then he left me, and blood flowed from me, and this other one took his place. I do not know from which of them the child is.” The scrutinizer said, “Allah is greater.” Umar said to the child, “Go to whichever of them you wish.”

The salient point here that is ‘Umar (may Allah be pleased with him) hired someone who specialized in studying children’s features to try to determine parentage. That is, essentially, a very crude method of DNA testing. No doubt if modern DNA testing had been available, ‘Umar would have ordered it.

No Shaming

Lastly, the out-of-wedlock child is a full citizen and is innocent of his parents’s sin. He should not be shamed, accused, or made to feel inferior to anyone. No one carries the burden of another’s sins. I detest the terms “son of haram” or “illegitimate” child. “Illegitimate” implies that the child’s very humanity is in question. No human being is illegitimate! We are all spiritual beings, equal in Allah’s sight but for our faith and deeds.

The out-of-wedlock child enjoys all the rights of any other citizen and should not be looked down on in any way.

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