By Shaykh Haider Hobbollah
The question of an illegitimate child (al-ibn ghayr al-shar’ī) or a child born out of illicit relations (walad al-zinā) is one of the major points of contention between Islamic jurisprudence (al-fiqh) and contemporary understandings of individual, family, and community rights.1 In general, Islamic jurisconsults (except for a late movement that has appeared over the past few decades) reject the illegitimate child’s right of lineage from his father and biological family. As such, the genealogical relationship—along with every sense of the legal implications it carries (such as in issues of inheritance)—is deemed severed. Essentially, the illegitimate child has been consigned to having no family; there is an allusion in some traditions that the illegitimate child is lighayyah, that is he has absolutely no social value since he has been begotten out of illicit relations. In essence, Islamic law has stripped him from absolutely any family connection, and most especially from bearing any patrilineal relationship; the latter concept is termed in Islamic fiqh as the negation of attachment (nafy al-ilḥāq).
However, the predicament of an illegitimate child does not stop at the level of the family; rather it has been extrapolated into two other lines of reasoning:
1. The first pertains to the religious affiliation of an illegitimate child; most Islamic jurists deem such a child a Muslim, so long as like others he adheres to the externalities of Islam. Therefore, his illegitimate birth does not impede upon his religious adherence; rather he is like everyone else in that his creed depends on the profession of faith (nuṭq al-shahādatayn). In contrast, some jurists—such as al-Shaykh ibn Idrīs al-Ḥillī (d. 598 AH)—have opined that the illegitimate child is a disbeliever even if he outwardly follows Islam; hence, all the Islamic rules that would pertain to a non-Muslim are applied to him as well. As such, the illegitimate child becomes disjointed not only from his family but also from the Islamic community, even if he outwardly adheres to the religion.
2. The second issue pertains to social relations and civil/political commissions; many of the jurists have disqualified an illegitimate child from assuming many political and religious offices. Therefore, even if he may be a pious believer, he is not allowed to become a judge; yet further, his testimony is not even acceptable in Islamic court. He is not allowed to take up a position as a political leader of the Muslims (imām or walī al-amr). He has no right to become a religious authority (al-marja’iyyah al-dīniyyah), and it is forbidden to emulate him (al-taqlīd) or follow his religious edicts (al-fatāwā). He cannot be the Imam for the Friday prayer or any jamā’ah prayer at all; it is even controversial whether his bloodwit (al-diyah) is equivalent to that of a Muslim, etc.
Before I proceed with commentary regarding this, it should be said that the Holy Qur’ān does not display even an inkling of an indication—whether affirmative or negative—regarding the rules about an illegitimate child. Therefore, the jurisprudential concept is entirely based on narrations, al-ijmā’ and al-shuhrah, and religiously sanctioned customs (al-a’rāf al-mutasharri’ah).
In my humble opinion, it appears Islamic jurists may have made some errors in investigating this issue, most prominent of which are as follows:
1. The first mistake is in proper exegesis of a famous rule derived from the Prophetic corpus known as the “rule of the bedstead” (qā’idah al-firāsh). This rule states that “The child belongs to the bedstead and the unchaste is barred (al-walad li al-firāsh wa li al-‘āhir al-ḥajar).” The common interpretation is that the man who fornicated has no right to the child—as such, they utilize this rule to imply a categorical separation of the child from his biological family in all circumstances. However, after careful examination of internal and external contextual clues, it becomes clear that there is no intention in this rule to sever the natural father-son relationship between the fornicator and his son. Rather, this rule is only addressing a specific circumstance wherein a married woman had committed adultery. In other words, when we are incapable of ascertaining whether the child belongs to the adulterer or the husband, the Sharī’ah dictates that the child belongs to the husband. In other words, the child was begotten through wedlock and the adulterer is barred from paternity; thus, if the adulterer were to claim himself the father, his claim should be dismissed. However, this rule cannot be extended to situations where we can prove that the child belongs to the adulterer, such as via DNA testing; in such a circumstance, this rule would not be able to abrogate this established paternal relationship.
Therefore, it stands to reason that the Sharī’ah does not attempt to change the conception of motherhood, fatherhood, or filial relationships. All it has sanctioned is the primacy of the ‘bed of wedlock’ in the case that a marriage existed while there is no binding proof the son belongs to the adulterer. Hence, it is not possible for us to separate the child from his true biological family when paternity is proven. The implication is that the child born to an unmarried couple is their offspring, and it is not possible to claim that this child has no family. Rather, they are indeed his family, and the same prohibitions and restrictions apply here as in any other filial relationship. Therefore, the father cannot pay zakāt to him, because this is his real son and he is legally responsible for his expenses (zakāt cannot be paid on anyone whose expenses are obligatory). Similarly, the rules of ‘aqīqah, rules about children, expenses, licit relations, maintaining ties of kinship, and marriage all apply here.
Our claim is further supported by the problem perceived by some scholars of Islamic fiqh—especially among the Ahl al-Sunnah. Based on this incorrect understanding of the rule, if an illegitimate child does not legally belong to his biological father (even though we know that he does in reality), this implies it is allowed for him to marry his biological mother, aunt, grandmother, or sister. This is obviously ludicrous and thus some Sunni jurists have said that while the illegitimate child cannot marry his blood relatives (walad al-taḥrīm) he is also not maḥram to them. However, there is no clear evidence to back up such a conclusion; for if he is truly not related to his family relations Islamically, on what basis are we saying he cannot marry his biological relatives?! This entire issue reveals the state of confusion that has beset some Islamic jurists; they ought to revise their understanding of the “rule of the bedstead” to realize it does not extend to cases wherein a paternal relationship is proven based on certainty.
Another issue worthy of our attention is that the Sharī’ah has gone to great lengths in criticizing what is known as conflating genealogy (ikhtilāṭ al-ansāb); several religious texts have issued warnings against this. When the Sharī’ah has been so conservative against this phenomenon, how could it allow us to attribute the child to someone other than his parents when we definitely know there is no paternity?! Does this not mean that we are ascribing a child to someone other than his real father?! Perhaps this is an indication for us that the “rule of the bedstead” does not apply when the biological family of the child is definitely known; rather, it is only relevant for ambiguous cases, which had been abundant in the past because science was not advanced enough to reveal lineage.
2. There is a second issue which has affected some jurists, as we alluded to earlier; namely, the group of religious traditions attributed to the Prophet and his purified family that claim an illegitimate child is a disbeliever, ritually unclean, or destined for Hell. Religious scholars have expended great effort in interpreting these traditions and I have discovered more than thirteen jurist attempts to understand these fifteen-odd narrations found in Shī’ī and Sunni books. Without getting into a detailed analysis of each narration in terms of its sources, chains, and imports (most of them have weak chains), these narrations suffer from serious textual weaknesses (al-matn); they also fly in the face of several other narrations, fiqhī principles, and historical precedents that affirm the illegitimate child was never treated as a non-Muslim. Shaykh Ḍiyā’ al-Dīn al-‘Irāqī has put it beautifully when he described these narrations as fabrications and obfuscations (al-akādhīb wa al-makhārīq) in opposing reality and religious facts. How is it possible that a fornicator should be in Heaven after repenting, while his righteous son is consigned to Hell forever? How could one ascribe the sin of the former upon the latter?
These aḥādīth oppose the Qur’ānic criteria for reward and punishment which emphasize faith and righteous works—not biological happenstance which is beyond one’s control. It is therefore prudent to either discard them or revise their interpretation to fit with the Qur’ānic ethos and rationality.
3. When we transition to the sphere of social relations, we observe two relevant points, outside of the detailed fiqhī investigations:
a) Some jurists base their religious edicts on religious customs—what is termed as al-sīrah al-mutasharri’iyyah—without any discrete religious texts to back them up. As an example, the illegitimate child is prohibited from assuming the office of a judge, religious authority, or political guardianship over the Muslims. This is because the religious custom historically found such a thing reprehensible; in turn, they claim this custom discloses the stance of the Sharī’ah. Without getting into discussions in legal theory about the probativity of al-sīrah al-mutasharri’iyyah, the practical application suffers from a problem: it is not possible for us to know whether the sensitivity embedded within the religious custom—if substantiated historically—issues from a religious sentiment. There remains a historical possibility that the social mores of that time simply found it reprehensible and that this was not necessarily derived from a purely religious standpoint.
b) We observe contradictory narrations latent in the ḥadīth corpus on some of these issues; nonetheless, the jurists tend to prefer the narrations that are staunchest against those of illegitimate birth! We ought to take pause to examine this issue, especially when it comes to the narrations about the legal testimony and inheritance of an illegitimate child.
The jurists build their theory regarding the illegitimate child based on two other concepts: the probativity of solitary narrations (ḥujiyyah khabar al-wāḥid) and consensus (al-ijmāʿ). As I do not believe in the authoritativeness of these two concepts in Islamic legal theory (uṣūl al-fiqh), I cannot accept the fatāwa given by jurists who rely on them. Moreover, when examining such solitary narrations, one finds many contradictions between them. Consequently, we can only accept the narrations which match with the Qur’ān and reason (al-ʿaql).
Lastly, it is likely that these narrations were fabricated due to the context of the Arabian society at that time. People at that time considered an illegitimate child an abomination in society, to the extent that illegitimate children were viewed as second-class citizens. As a result of this, many narrations could have been fabricated vilifying illegitimate children. In this context, I disagree with jurists who issue fatāwa preventing an illegitimate person from attaining religious and societal positions, such as being a judge or an imām of a community.
- This is a very brief summary of a very extensive study on this topic in 2015 by Shaykh Haider Hobbollah that can be accessed here: Source.