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Chapter Two: Means by Which Paternity may not be Established

 

Topic One: Change of Paternity

 

Changing one’s paternity is impermissible according to the unanimous opinion of scholars.[1] This can be delineated as follows:

 

1. Paternity is a matter that cannot be changed, abrogated or assigned.[2] Therefore, Islam has forbidden changing one's paternity and claiming to be belonging to other than one's real father. The Prophet (?allallahu ‘alayhi wasallam) was very emphatic about criminalizing the act of changing one’s paternity or claiming to be the offspring of other than one’s real father. The Prophet (?allallahu ‘alayhi wasallam) said, “He who knowingly attaches his parentage to other than his real father, Paradise will be forbidden for him [to enter].”[3] He also said, “He who attaches his lineage to one other than that of his father or ascribes himself to other than his ex-masters, the curse of Allah, the Angels and all the people are on him; Allah will not accept any of his deeds or justifications on the Day of Judgment.”[4]

 

An-Nawawi writes, “This is express evidence as to the emphatic prohibition of changing one’s paternity or loyalty, for such an act is a clear indication of denial of favour and a salient harm to the rights of inheritance, loyalty, lineage, and the like. Moreover, this [act] entails the severance of blood relations and disobedience [to parents].”[5]

 

Abu Hurayrah also narrated that the Prophet (?allallahu ‘alayhi wasallam) said, “Do not deny your fathers, for doing so is an act of disbelief.”[6]

 

2. The Islamic Shari’ah forbids any woman from knowingly and deliberately attaching any child to other than his real father. Abu Hurayrah reported that he heard the Prophet (?allallahu ‘alayhi wasallam) commenting on the verse of Li’an thus: “Any woman who falsely attaches a child to the lineage of any people, then she has no connection whatsoever with Allah, and Allah will not admit her into His Paradise; and any man who deliberately denies his child, Allah will veil Himself from him and defame him among all people [on the Day of Judgment].[7]

 

3. As stated in the above ?adith, it is also prohibited for a father to deny paternity to his child, as it is a change of an established paternity. However, if there is a legal reason to deny paternity to a child, it is out of context here. This point will be discussed in detail when elaborating on Li’an which the Legislator has made a legal means of denying paternity to a child for an established cause.

 

4. Moreover, it is prohibited to claim paternity to a child of unknown parentage when the claimant definitely knows that he is not his child. This point will be discussed further under the topic of adoption.

 

5. Finally, it is prohibited to sell or give away lineage. Ibn `Umar (ra?iyallahu anhu) narrated that the Prophet (?allallahu ‘alayhi wasallam) said, “Loyalty is a relation like that of lineage which may not be sold or given away.”[8] This indicates that lineage may not be sold or given away.

 

Topic Two: Adoption

 

Adoption means that a man takes a boy or a girl whom he knows to be not his offspring as his legal son or daughter.[9] The adoption system was acknowledged in the pre-Islamic period and the early Islamic period. In the pre-Islamic period, a man would admire someone's strength and personality and hence adopt him as his son with the right to inherit from him like his other male offspring. The Prophet (?allallahu ‘alayhi wasallam) adopted Zayd bin Harithah before he was proclaimed as a Prophet. Therefore, people called him Zayd, son of Mu?ammad.[11] However, Islam prohibited adoption. The following statements from the Qur’an and the Prophet's Sunnah are clear evidence to this effect:

 

1. Allah says, "Allah has not put for any man two hearts inside his body. Neither has He made your wives whom you divorce by dhihar [12] your mothers, nor has He made your adopted sons your real sons. That is but your saying with your mouths. But Allah says the truth, and He guides to the [Right] Way. Call them (i.e. adopted sons) by [the names of] their fathers, that is more just with Allah; but if you know not their fathers' [names, call them] your brothers in faith and your freed slaves."[13]

 

The above verse emphatically prohibits adoption. No man may adopt the child of another man or attach him to his lineage. The Qur’anic statement, “Nor has He made your adopted sons your real sons” abolished any kind of adoption or change of lineage.[14]

 

2. The Prophetic ?adith: “He who knowingly attaches his parentage to other than his real father, Paradise is forbidden for him [to enter].”[15]

 

3.  Abu Hurayrah narrated that the Prophet (?allallahu ‘alayhi wasallam)  said, “Do not deny your fathers, for doing so is an act of disbelief.”[16]

 

The differences between adoption and claiming paternity to a child of unknown parentage can be summed up in the following:

 

a) Admitting paternity to a child of unknown parentage does not establish paternity; rather it is a means towards establishing it whereas adoption is an act that establishes paternity from the first instance.

 

b) Paternity is realized by adoption even if the adopted child has a known father, while paternity through admission is not realized unless the child is of unknown parentage.[17]

 

Topic Three: Claiming paternity to a Child Born out of Wedlock

 

All scholars are agreed that the adulterer who claims paternity to a child born as a result of adultery when his mother is under the legal bed of matrimony may not be given the child whom he claims to be his son or daughter; rather the child should be given to the legal owner of the matrimonial bed. This unanimous agreement has been reported by many scholars.[18]

 

Ibn `Abdul-Barr writes in At-Tamhid, , “He (the Prophet) has not accepted that the child born out of wedlock after the advent of Islam be attached to the lineage of any person who may claim paternity to the child. All Muslim scholars have unanimously agreed to this, as enjoined by the Prophet (?allallahu ‘alayhi wasallam).”[19]

 

In Al-Mughni we read, “They (i.e. the scholars) have unanimously agreed that if the child is born on the bed of a man but claimed by another man, the child may not be attached to the lineage of the claimant.”[20] This is supported by the following:

 

1. The Prophetic statement: “The child is for the bed (i.e. the man on whose bed he was born) and stones (disappointment and deprivation) for the one who has done illegal sexual intercourse."[21]

 

This statement makes it clear that the child born on the legal matrimonial bed should be attached to the legal owner of the bed rather than to the man who claims paternity to the child as long as the matrimonial bed is already there. Therefore, the matrimonial bed is given preference over the claim of paternity even if the child is the product of an illegal relationship.

 

2. However, if the owner of the matrimonial bed thinks that the child is not his, he may deny paternity to him through Li’an.[22]

 

References

 

[1] Fat? al-Bari, 12/44.

 

[2] Al-Mab?ut, 17/98-99 and Ahkam Al-Ahkam Sharh Umdat Al-Ahkam, 4/75.

 

[3] Already commented on.

 

[4] Reported by Muslim in his ?a?ih, Book of Pilgrimage, part on the virtues of Madinah, no. 3327, p. 575 and Book of Freeing Slaves, part on prohibiting slaves from attaching themselves to other than their real masters, no. 3794, p. 657.

 

[5] Shar? ?a?ih Muslim, 9/144.

 

[6] Reported by Al-Bukhari in his ?a?ih, Book of Inheritance, part on those who attach themselves to other than their fathers, no. 6768, p. 1167 and Muslim in his ?a?ih, Book of Belief, part on the status of belief of those who knowingly deny their fathers, no. 47, p. 218.

 

[7] Reported by Abu Dawud in his Sunan, Book of Divorce, part on prohibition of the denial of paternity to children, no. 2263, p. 328; An-Nasa’i in his Sunan, Book of Divorce, part on prohibition of the denial of paternity to children, no. 3511, p. 489; Ibn Majah in his Sunan, Book of Inheritance, part on those who deny their offspring, no. 396, p. 2743; Ad-Darimi in his Sunan, Book of Marriage, part on those who knowingly deny their offspring, no. 2244, 2/76 and Al-?akim in Al-Mustadrak, Book of Divorce; he said that it is an authentic ?adith according to the conditions set by Muslim, 2/203.

 

[8] Reported by Al-?akim in Al-Mustadrak, Book of Inheritance, part on loyalty is a relation like that of lineage; he said that this ?adith is of an authentic chain of narrators, 4/341 and Al-Bayhaqi in As-Sunan Al-Kubra from Al-Hasan in mursal form, Book of Loyalty, 10/292. Al-Albani said that it is an authentic ?adith in Irwa’ Al-Ghalil, 6/109.

 

[9] Ahkam Al-Qur’an by Ibn Al-Arabi, 3/1504.

 

[10] Al-Jami' li Ahkam Al-Qur'an, 14/19 and Zad Al-Ma'ad, 5/555.

 

[11] Dhihar is the saying of a husband to his wife, "You are to me like the back of my mother." That is, "You are unlawful for me to approach." [Translators Note]

 

[12] Surah Al-Ahzab: 4-5.

 

[13] Fat? al-Bari, 12/55.

 

[14] Already commented on.

 

[15] Already commented on.

 

[16] Islamic Jurisprudence and its Evidence, 7/695.

 

[17] Bada’i' As-Sana’i', 6/243; Ash-Sharh Al-Kabir by Ad-Dardir, 2/498; Fath al-Bari, 12/35-36 and Kashaf Al-Qina’, 5/427.

 

[18] Ibn `Abdul Barr, 18/312.

 

[19] Ibn Qudamah, 9/123.

 

[20] Already commented on.

 

[21] At-Tamhid.

 

 

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