In the Name of Allaah, We praise Him, seek His help and ask for His forgiveness. Whoever Allaah guides none can misguide, and whoever He allows to fall astray, none can guide them aright.
We bear witness that there is none worthy of worship but Allaah Alone, and we bear witness that Muhammad (SAWS) is His Slave-Servant and the Seal of His Messengers.
If a child is ‘conceived’ before marriage or out of wedlock, absolutely regardless of whether or
not the biological father later marries the woman he committed the abomination of ‘zina’ with…..as long as the child was ‘conceived’ out of marriage, it will be considered a child born out of ‘zina’ in the Sight of Shariah Law and in the Sight of Allaah Subhanah; and all the conditions and restrictions which apply to any child born out of wedlock will apply to this child.
The Child of Zina (who was born outside wedlock) is traced back to his mother’s lineage and to her family.
The rules of Mahram apply to him in relation to his relatives from the mother’s side only. His or her legal Wali is from the mother’s side and he inherits from that side which is the only one that inherits from him and to which he is legally linked.
So, all other rules concerning fatherhood stem directly from the mother’s side. Therefore, the child born outside legal wedlock is not traced back to his father, nor does any of them inherit from the other.
This is the most preponderant
opinion and it is the opinions of the majority of Scholars. Some Scholars, however, believe that he can be traced to his father if the latter accepts him as his son. This is the opinion of Is’haq Ibn Rahawahi, Urwa, Sulaiman Ibn Yasar and Abu
Hanifa.
Imam Abu Hanifa says:
"I do not find any harm that a man who makes Zina (adultery and fornication) with a woman and she gets pregnant as a result, that this man protects the honor of this woman by marrying her and the child is his".
There are some ahaadeeth that condemn the illegitimate child, but most of these ahaadeeth are da’eef (weak) and are not saheeh (sound). It was narrated by Abu Dawood in his Sunan (4/39) and by Ahmad in al-Musnad (2/311) from Abu Hurayrah (may Allaah be pleased with him) that the Prophets (peace and blessings of Allaah be upon him) said:
“The illegitimate child is the most evil of the three”
meaning more evil than his parents. Among the Scholars who classed this as hasan were Ibn al-Qayyim in al-Manaar al-Muneef (133) and al-Albaani in al-Silsilat al-Saheehah (672).
The Scholars interpreted this hadeeth in a number of ways, the most famous of which was that suggested by Sufyaan al-Thawri, who said: it means he is the most evil of the three if he does the same action as his parents did (i.e., zina or adultery).
This was narrated from ‘Aa’ishah, who said that the Prophet (peace and blessings of Allaah be upon him) said:
“He is the most evil of the three if he does the same action as his parents did – meaning the illegitimate child.”
Although its isnaad is da’eef, it was interpreted in this manner by the salaf, as stated above.
This interpretation is supported by the report narrated by al-Haakim (4/100) – with an isnaad of which al-Albaani said,
“It may be regarded as hasan” – from ‘Aa’ishah (may Allaah be pleased with her), that the Prophet (peace and blessings of Allaah be upon him) said: “The illegitimate child does not bear any part of his parents’ burden of sin. ‘and no bearer of burdens shall bear the burden of another’ [al-An’aam 6:164 – interpretation of the meaning].” (al-Silsilat al-Sahe
However, Nigeria is a secular state where the Constitution of the Federal Republic of Nigeria 1999 as amended prohibits the adoption of any state religion on the one hand yet guarantee the application of Islamic private law on the other hand. These provided options of convenient choose and pick for Nigerian Muslim litigant on the subject matter. But then the provisions of Section 42 (2) states that:
"No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth"
Therefore, can a person, who is a Muslim born out of wedlock enforced his rights under Section? My knowledge has expired here and can we have opinions on this matter.
I must state here that the essence of this write up is to stimulate ideas to promote knowledge and understanding. I take full responsibility for errors and omissions and should be forgiven please.
Written by Solomon Dalung, LLB, BL, LLM
California, USA.
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