Call them by their father’s names: The status of a child conceived out of wedlock

 

What is the status of a child conceived out of wedlock? Recently I came across something that reminded me of a person I had known several years ago. Not that I really knew him well, but once we had a conversation that has stuck in my head till this day. I had known of him for a while as Hayyan ibn Bayyan, but I wasn’t sure about his last name. So I asked him “…wasn’t it Bayyan or something?” He laughed and said with a really painful look on his face, almost like he was forcing himself to do something against his conscience: “Yeh you know, that’s what I used to be called, but you know what I’m saying, My mom turned out to have had me out of wedlock, so I’m you know, Hayyan ibn Suzanne now.”

Besides this being completely disrespectful to one’s mother (for the simple fact that I don’t need to hear what your mother has or had been doing), it is also problematic from an Islamic legal standpoint for the following reasons:

Reason #1:
The general principle: “Relationships of unbelievers are concurred and confirmed”

What this means is that when two people enter into a relationship before Islam, and social bonds are created, these bonds are not destroyed or re-formulated because of one of the two accepting Islam, and especially not when one of their children accepts Islam. Two people who were married before Islam do not have to renew their vows. Children born and attributed to their fathers are not re-attributed to others. The proof for this is in the generalities of the Sunnah, in which we find that the Messenger of Allah did not delve into peoples past, asking who their fathers were or commanding them to confirm their lineage. It was a known fact that people fornicated before the time of Islam, some men even bringing numerous other men to impregnate their wives for them, in addition to other forms of relations that these people had in the Jahiliyyah times (see the hadith narrated by Aishah in Bukhari #4732). This happened and was common knowledge, yet the Prophet did not ask people to test for their lineage nor to ask about the way they were sired. Instead the relationships of the Disbelievers were “left as they were”. Because of this scholars of the legal tradition have reiterated this principle across schools of legal thoughts.

Reason #2:
The hadith “The child is [attributed] to the bed” (narrated by al-Bukhari #1912) the text of the hadith is as follows:

(…عَنْ عَائِشَةَ رَضِيَ اللَّهُ عَنْهَا قَالَتْ : كَانَ عُتْبَةُ بْنُ أَبِي وَقَّاصٍ عَهِدَ إِلَى أَخِيهِ سَعْدِ بْنِ أَبِي وَقَّاصٍ أَنَّ ابْنَ وَلِيدَةِ زَمْعَةَ مِنِّي فَاقْبِضْهُ قَالَتْ فَلَمَّا كَانَ عَامَ الْفَتْحِ أَخَذَهُ سَعْدُ بْنُ أَبِي وَقَّاصٍ وَقَالَ ابْنُ أَخِي قَدْ عَهِدَ إِلَيَّ فِيهِ فَقَامَ عَبْدُ بْنُ زَمْعَةَ فَقَالَ أَخِي وَابْنُ وَلِيدَةِ أَبِي وُلِدَ عَلَى فِرَاشِهِ فَتَسَاوَقَا إِلَى النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَقَالَ سَعْدٌ يَا رَسُولَ اللَّهِ ابْنُ أَخِي كَانَ قَدْ عَهِدَ إِلَيَّ فِيهِ فَقَالَ عَبْدُ بْنُ زَمْعَةَ أَخِي وَابْنُ وَلِيدَةِ أَبِي وُلِدَ عَلَى فِرَاشِهِ فَقَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ هُوَ لَكَ يَا عَبْدُ بْنَ زَمْعَةَ ثُمَّ قَالَ النَّبِيُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ الْوَلَدُ لِلْفِرَاشِ وَلِلْعَاهِرِ الْحَجَرُ ثُمَّ قَالَ لِسَوْدَةَ بِنْتِ زَمْعَةَ زَوْجِ النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ احْتَجِبِي مِنْهُ لِمَا رَأَى مِنْ شَبَهِهِ بِعُتْبَةَ فَمَا رَآهَا حَتَّى لَقِيَ اللَّه)
“Aishah narrates: Utbah ibn Abi Waqqas had willed that his brother Sa’d ‘…the son of Zam’ah’s concubine is mine, so take custody of him.’ On the day Makkah was conquered Sa’d ibn Abi Waqqas took him, telling the people that his brother had willed from him to do so. ‘Abd ibn Zam’ah said: This is my brother and the son of my father’s concubine, he was born in his bed. They both proceeded to the Prophet, Sa’d saying to him ‘O Messenger of God, this is nephew, my brother willed for me to take custody of him’ at this ‘Abd ibn Zam’ah said ‘He’s my brother and the son of my father’s concubine, he was born on his bed.’ The Messenger of Allah then said ‘He is yours ‘Abd ibn Zam’ah’ He then said ‘The child is [attributed] to the bed and the fornicator is prevented’. He then said to Sawdah bint Zam’ah (the wife of the Prophet) ‘Cover yourself in front of him’ because of the resemblance that he saw in him (i.e. the child) to ‘Utbah; with this he never saw her until he died.”

[General meaning of the Hadith]

The bed signifies marriage, so any child born is attributed to the “bed” it was born on, i.e. the child will be attributed to the husband of that woman whom he was born to. Therefore in the Hadith the Messenger of God attributed the child to Zam’ah. However, it is interesting to note that he also ordered his wife to cover in front of the young man, for the very fact that based on testimony and physical evidence (the boy’s appearance) there was a possibility that he actually was Utbah’s son and not that of Zam’ah. The Prophet then said “…the fornicator is prevented…” i.e. prevented from his claim.

[Variant opinions as to deductions from the Hadith]

Consideration was made for the fact that a child may be born to a woman that has no husband as a result of illicit relations. Classical legal sources relate two opinions concerning this issue, remember these two opinions (in fact the thrust of this entire article) do not apply to adulterous relations:

  1. The first dictates that the child is attributed to the mother only, and not to the father. This taken from the latter part of the hadith “…the fornicator is prevented…” i.e. prevented from his claim, any claim made to the child. This opinion takes into consideration the generality of the statement, not the contextual circumstance.
  2. The second states that the child since there was no marital relationship, and the woman was not married, the child can then be attributed to the father that claims him. This is based on the same latter part of the hadith, except that here consideration is given to the contextual circumstance of the statement, instead of its generality. So the hadith would here mean “No claim can be made of a child born to another man’s wife, however if the woman is not married the child may then be claimed.” Therefore, if a man sires a child out of wedlock and claims him as such, then this child is attributed to him. As long as there are probable grounds for presumption and/or confirmation, then the child should be treated as his own, will take his name and will inherit from him. The grounds for this claim could be confirmed through DNA tests and other forensic methods.

[Consideration for the Second Opinion]
This second opinion, even though it was a minority opinion amongst the scholars of the past, has both specific textual basis and agrees with the general principles of Islam that protect the Religion, Life, Honor, Lineage, and Wealth of mankind. In implementing this second opinion, we can see that none of these general precepts are contravened, and in fact some of them are promoted. Actions of the some of the Salaf confirm these general considerations; Abu Bakr, while Caliph, after reprimanding two young people for illicit relations, married them to each other (al-Musannaf of AbdulRazzaq #12796); Umar is reported to have attempted the same with two young people who had even had a child (al-Musannaf of AbdulRazzaq #12793), yet one party refused. The point is that considerations were made for the two people that had fell into the sin of fornication, and they were not condemned to a life of perpetual shame. This is especially true of relations that occurred before someone had accepted Islam, and even more so when someone born of those relations accepting Islam.

In Summary

Islam is a religion that seeks to ensure stable lives for children, improve their mental health, and self-esteem. Islam, as embodied in its legal corpus and core principles of faith, seeks family integrity and strength, which leads to community integrity and strength. It then follows that the second opinion is stronger in meaning and value, in that it draws from both general and specific evidences and their understandings. In conversations with several scholars, I was instructed that this opinion was best to be considered in our American context, especially due to the need for strong communities. This article lays out the general principles for determining which opinion is applicable. Its important to note that scholary advice should be sought when trying to determine where and how this opinion is applicable to any one incident (Tahqeeq al-Manat). While we as Muslims must act as witnesses to God’s truth in this world, we must also embody the mercy and compassion that God had written upon himself the day he created the heavens and the earth. This balance at personal, familial, and community levels is necessary if we desire to attain any level of success in these three spheres.

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