Legitimacy

Posted on 05/19/2012 by marina

Wikis > Dictionary of Islam > Legitimacy

LEGITIMACY.
Waladu ‘l-halal ولد الحلال “a ‘legitimate child “; waladu ‘z-zina’ ولد الزناء, “an illegitimate child.”
The Muslim law, unlike the law of England, makes legitimacy depend, not. merely upon the fact of the child being born in “lawful wedlock,” but also conceived after lawful marriage.
According to the Sunnis and Shiahs and according to the teaching of the Qur’an itself the shortest period of gestation recognised by law is six months, and consequently a child born any time after six months from the date of marriage has a claim to legitimacy. Amongst the Sunnis. a simple denial of the paternity of the child so born would not take away its status of legitimacy. But the Shiahs hold that if a man got a woman with child and then marry her, and she give birth to the child within six months after marriage, legitimacy is not established.
As to the longest period of pregnancy, there are some strange rulings in Muslim law. The Shiahs, upon the basis of a decision pronounced by ‘Ali, recognize ten lunar months as the longest period of gestation, and this is now regarded as the longest legal period by both Shi’ahs and Sunnis. But Abu Hanifah and his two disciples, upon the authority of a tradition reported by Ayishah, regard two years as the longest period of gestation, and the Imam ash-Shafi’i extended it to four, and the Imam Malik to five and even seven years! It is said these Sunni doctors based their opinions on the legendary birth of Zuhak Tazi and others, who were born, so it is related, in the fourth year of conception! But Muslim divines say that the old jurisconsults of the Sunni school were actuated by a sentiment of humanity, and not by any indifference as to the laws of nature, their chief desire being to prevent an abuse of the provisions of the law regarding divorce and the disavowal of children, The general consensus of Muslim doctors points to ten months as the longest period of pregnancy which can be recognised by any court of justice.
[Under the old Roman law, it was ten months. In the Code Napoleon, article 312, it is three hundred days. Under the Jewish law, the husband had the absolute right of disavowal. See Code Rabbinique, vol. ii. p. 63]
The Muslim law, like the English law, does not recognize the legitimation of antenuptial children. Whereas, according to French and Scotch law, such children are legitimated by the subsequent marriage of the parents.
In Sunni law, an invalid marriage does not affect the legitimacy of children born from it. Nor does it in Shi’ah law; but the Shi’ah law demands proof that such a marriage was a bonafide one, whilst the Hanafi code is not strict on this point.
In the case of a divorce by li’an [LI’AN], the waladu ‘l-muli’anah, or “child of imprecation is not cut off from his right of inheritance from his father.
(See Syud Ameer Ali’s Personal Law of Muslims, p. 164); Fatawa i-Alamghiri, p. 216; Shara’ru ‘l-Islam, p. 301.) [PARENTAGE.]

Based on Hughes, Dictionary of Islam