What is an illegitimate child? What does the religion of Islam say about this term?
Submitted by on Mon, 12/11/2018 - 13:59
Dear Brother / Sister,
Illegitimate child, a child born out of fornication. A child born out of wedlock. A child that is born of a married couple is called a "legitimate child", a child born out of wedlock is called an "illegitimate child". Lineage expresses a person’s bond of blood with his ancestors.
Islam prohibits parents from denying the lineage of their children. It is regarded haram for a woman to attribute the child to which she gave birth to a person other than his real father. The Prophet states the following regarding the issue:
"Any woman who brings to her family one who does not belong to it has nothing to do with Allah (i.e. expects no mercy from Allah), and Allah will not bring her into His Paradise. Allah, the Exalted, will veil Himself from any man who disowns his child when he looks at him, and disgrace him in the presence of all creatures, first and last. (Abu Dawud Talaq, 29; Darimi, Nikah, 42; Nasai, Talak, 47).
Islam prohibits children from accepting anyone other than their own fathers as fathers. The following is stated in a hadith:
"Paradise is haram for a person who claims to be the son of any other person than his real father knowingly." (Bukhari, Manaqib, 5, Faraid, 29; Muslim, Iman, I 12,114, 115, Itq, 21; Tirmidhi, Wasaya, 5, Wala', 3: Darimi, Siyar, 82, Faraid, 2; Ahmad b. Hanbal, II,118, V, 38, 46).
Islam abolished adopting the child of another person. This practice, which existed before Islam, was abolished through an example in the family life of the Messenger of Allah himself. For, before the Messenger of Allah (pbuh) became a prophet, the people called Zayd b. Haritha as Zayd b. Muhammad (Muhammad's son Zayd). The following verses ended this practice and understanding:
"Allah has not made for any man two hearts in his (one) body: nor has He made your wives whom ye divorce by Zihar your mothers: nor has He made your adopted sons your sons. Such is (only) your (manner of) speech by your mouths. But Allah tells (you) the Truth, and He shows the (right) Way. Call them by (the names of) their fathers: that is juster in the sight of Allah. But if ye know not their father´s (names, call them) your Brothers in faith, or your maulas. But there is no blame on you if ye make a mistake therein: (what counts is) the intention of your hearts: and Allah is Oft-Returning, Most Merciful." (al-Ahzab, 33/4, 5)
As a matter of fact, Zaynab bint Jahsh, whom Zayd b. Haritha divorced due to discord, married the Messenger of Allah (pbuh) afterwards as it is stated in the verse below:
"...Then when Zaid had dissolved (his marriage) with her, with the necessary (formality), We joined her in marriage to thee: in order that (in future) there may be no difficulty to the Believers in (the matter of) marriage with the wives of their adopted sons, when the latter have dissolved with the necessary (formality) (their marriage) with them..." (al-Ahzab, 33/37)
Accordingly, if a person adopts a deserted child or a child whose parents are not known, this child is not regarded as his own child even if he does not call him as his own child. Inheritance is not in question when a child is adopted; marriage prohibitions about being relatives are not in question either. However, if a person acts as a guardian of an orphan brings him up, teaches him a profession and marries him off, he is regarded to have done a very righteous deed. However, the general decrees of Islam related to tasattur (hijab) and not being alone together become valid after puberty.
It cannot be thought that the maternal lineage of the child is uncertain. The woman who gave birth to the child is his mother. Attribution to the mother does not change whether the child is born legitimately or illegitimately. The attribution of the child to the father takes place in four forms. A legitimate marriage, an illegitimate marriage, sexual intercourse based on doubt and the man’s acceptance of the child. Islam abolished the practice of attributing the lineage of the child that was born as a result of fornication to the father.
The Prophet (pbuh) stated the following:
"The child belongs to the husband that is the owner of the bed. The one who commits adultery is stoned and deprived." (Bukhari, Buyu', 3, 100, Khusumat, 6, Wasaya, 4, Maghazi, 53, Faraid, 18, 28, Hudud, 23, Ahkam, 29; Muslim, Rada', 36, 37; Abu Dawud, Talaq, 34; Tirmidhi, Rada', 8, Wasaya, 5; Ibn Majah, Nikah, 59, Wasaya, 6; Malik, Muwatta', Aqdiya, 20; Ahmad b. Hanbal, I, 25, 59, 65, 59, 104, II, 179, 207, 239, 280).
What is meant by the hadith above is the husband that is married with a sound nikah. The child is attributed to him. If there is no nikah, the sexual intercourse is regarded as fornication and the child that is born is not attributed to such a man. For, fornication is not suitable for being a reason for the proof of lineage.
Accordingly, a child is attributed to the father when it is legitimate for him to be in the bed. This takes place only through sound or invalid nikah. This is the view of the majority. It is reported from Abu Hanifa that lineage will be definite based on marriage contract only. (al-Qasani, al-Badayi', 2nd impression, Beirut 1394/1974, III, 212; Ibnul-Humam, Fathul-Qadir, 1st impression, Egypt 1316/1898, III, 300; Ibn Rushd, Bidayatul-Mujtahid, Egypt, nd, II, 352; ash-Shawkani, Naylul-Awtar, VI, 279 ff)
The Reasons for the Lineage to be Definite
Lineage becomes definite through three ways:
1. Period of pregnancy: There is unanimous agreement that the shortest period of pregnancy is six months. According to the majority of the scholars, the beginning of this period starts from sexual intercourse. According to Abu Hanifa, this period starts from the marriage contract. The period of six months is based on the following two verses:
"…The carrying of the (child) to his weaning is (a period of) thirty months..." (al-Ahqaf, 46/15).
"…In travail upon travail did his mother bear him, and in years twain was his weaning..." (Luqman, 31/14).
Thus, when two years, that is, twenty-four months, is subtracted from thirty months, the result is six months.
The longest period of pregnancy is two years according to Hanafis, four years according to Shafiis and Hanbalis, five years according to the famous view of Malikis and nine months according to Ibn Hazm. Those longest periods were determined based on experiences. (see Ibnul-Humam, ibid, III, 310; Ibn Abidin, Raddul-Muhtar, II, 857; Ibn Rushd, ibid, II, 352; al-Maydani, al-Lubab, III, 87; Ibn Qudama, al-Mughni, VII, 477 ff; Ibn Hazm, al-Muhalla, X, 385).
2. The lineage of a child who is born within the period of iddah becomes definite: If a woman claims after being divorced that she gave birth to a child within the period of iddah and if the husband denies it, the lineage of the child related to the father does not become definite unless the woman brings two male witnesses or one male and one female witness according to Abu Hanifa. For, the iddah of the woman ends when she declares that she gave birth to a child. Therefore, the proof of the lineage is needed. (Ibnul-Humam, ibid, III, 305-309; Zaylai, Nasbur-Raya, III, 264)
3. Determining the father of the child through physical resemblance: If a woman marries another man during the period of iddah, it is possible for the child to be born to belong to either man. According to Hanafis, it is decreed that the child belongs to both men since there is no owner of the bed. According to the majority of the scholars, it is necessary to try to determine the real father based on physical and biological similarities. The evidence they base their view is the following incident: There were some rumors due to the difference of color between Zayd b. Haritha and his son Usama. When a scholar of genealogy declared that Zayd was his father by looking at their feet, the Prophet became very pleased. If it were not permissible to make use of physical resemblance, the Messenger of Allah would not have allowed it. (ash-Shawkani, Naylul-Awtar, VI; 282; az-Zuhayli, al-Fiqhul Islami wa Adillatuh,1405/1985, VII; 680, 681)
Accordingly, the children that are born in any way except a legitimate marriage, invalid marriage and sexual intercourse based on doubt are regarded as "illegitimate children". If a woman is brought to a man’s room and if they say, "this is your legitimate wife" and if the man believes in this statement since he has not seen or known her before and has a sexual intercourse with her, this is a sexual intercourse based on doubt. Some decrees are attributed to this intercourse since the man is excused here. The decree that the lineage of the child to be born is attributed to the man is one of them.
A child that is born from a sexual intercourse that is not based on doubt like that is also regarded as an illegitimate child. For, the Prophet (pbuh) said, "The child belongs to the husband that is the owner of the bed. The one who commits adultery is deprived."
Decrees about an illegitimate child
It is not permissible to afflict and oppress the children whose fathers are not known or who are known to be illegitimate children by addressing them like that. For, they did not have any opportunity to affect or change the destiny or to prevent something like that. It is stated one of the verses above that it is necessary to treat them understandingly:
"Call them by (the names of) their fathers: that is juster in the sight of Allah. But if ye know not their father´s (names, call them) your Brothers in faith, or your maulas. But there is no blame on you if ye make a mistake therein." (al-Ahzab, 33/5).
If the physical father of an illegitimate child is definite, kinship related to marriage occurs as it is the case in a legitimate marriage according to Hanafis. The prohibition of marriage between this child and the man who committed fornication occurs; the same prohibition is valid between the mother of this child and the ancestors and offspring of that man. Shafiis hold the view that fornication does not bring about marriage prohibition. (see as-Sarakhsi, al-Mabsut, Egypt 1324-1331 /1906-1912, IV, 204 ff; al-Jassas, Ahkamul-Qur'an, Cairo, nd, II, 137; Bilmen, Istılahat-ı Fıkhıyye Kamusu, Istanbul 1967, II, 97; Hamdi Döndüren, Delilleriyle İslam Hukuku, Istanbul 1983, 215, 216)
If an illegitimate child is just, his witnessing is accepted in the court. (al-Maydani, al-Lubab, IV, 63 ff; az-Zuhayli, ibid, 567)
On the other hand, it is regarded makruh for an illegitimate child to lead prayers to the congregation. For, lack of education and psychological frustration may be dominant in them. However, if an illegitimate child is a scholar and if he is distinguished among the congregation, there is no drawback to his being an imam. (see Hamdi Döndüren, Delilleriyle İslam İlmihali, Istanbul, 1991, 304).
The right of inheritance of an illegitimate child
- How will a child who was born out of a haram intercourse or from an illegitimate way be an inheritor in terms of his father?
If a husband accuses his wife of adultery, the spouses can be divorced as a result of “lian” that will take place in the court; this decree eliminates the lineage of the child that was born or that is expected to be born in terms of his father.
Inheritance is not in question between an illegitimate child and a child whose lineage is rejected in terms of his father and his father and the relatives of his father. There is unanimous agreement on it. Such a child becomes an inheritor in terms of his mother. His lineage related to his father is eliminated; therefore, he cannot be an inheritor to his father. His lineage in terms of his mother is definite. For, the woman who gave birth to him is his mother. Adultery is not regarded as a legitimate way in determining the lineage of the child.
An illegitimate child and a child whose lineage is rejected through lian become an inheritor to their mothers and maternal relatives. When there are other legitimate children of the woman, he is regarded as a half-brother. Therefore, he cannot be an inheritor with the attribute of "asaba". The mother becomes an inheritor to such a child.
The Prophet (pbuh) states the following:
"If a man commits fornication with a free or slave woman, the child that will be born becomes an illegitimate child. He cannot be an inheritor and his inheritance is not left to anybody." (see Abu Dawud, Faraid, 9; Ibn Majah, Faraid, 14; Darimi, Faraid, 45; ash-Shawkani, Naylul-Awtar, VI/66)
"The Prophet (pbuh) attributed the inheritance of a child who was rejected by lian to his mother and then to her relatives." (see Bukhari, Faraid, 17; Abu Davud, Faraid, 9; Darimi, Faraid, 24)
"An illegitimate child is like a child whose lineage was rejected by mulaana." (Darimi, Faraid, 45)
"The Prophet (pbuh) decreed that a child whose lineage was rejected by mulaana would be an inheritor to his mother." (Ahmad b. Hanbal, II, 216)
In conclusion, inheritance occurs between an illegitimate child or a child of lian and the mother and her relatives. For instance, when a person dies, and he has a mother, a maternal half-brother and a brother born out of fornication, the mother receives one-third of the inheritance and the maternal half-brother receives one-sixth. The remaining inheritance is shared through radd. Finally, two-thirds of the inheritance go to the mother and one third to the maternal half-brother. The paternal half-brother born of fornication is excluded from inheritance.
When a child born of fornication or a child who is rejected through lian dies, and his mother, his mother’s father and his maternal uncle exits, all of the inheritance goes to the mother. For, the grandfather and the maternal aunt are among the inheritors of dhawil-arham; when the mother who is owner of fard is alive, the inheritance will not go to them. She receives one-third of the inheritance through being an ashabul-faraid and the other two-thirds through radd.
As for a child who has no relatives and who dies without an inheritor, the housing and education of such a child belongs to the Islamic state. Therefore, his inheritance is left to the state as it is the case in the ownerless things. (see Ibn Abidin, Raddul-Muhtar, Egypt, nd. V, 565; al-Maydani, al-Lubab, IV, 198; az-Zaylai, Tabyinul-Haqaiq ala Kanzid-Daqaiq, al-Amiriyya impression, VI, 214; Ibn Qudama, al-Mughni, 3rd impression, Cairo, 1970, VI, 259 ff)
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