ISSUES ON LEGITIMACY

Paternity

Ascription of paternity is provided for under Sections 110 and 113 of the Islamic Family Law Act 1984, where –

1. the minimum period of six qamariah months for gestation is referred to.
2. the maximum period for gestation is provided for at four qamariah years to allow a child born to a widowed or divorced woman to be ascribed to her former husband – the “sleeping fetus” theory of the classical jurists (fuqaha)).
3. the man presumed to be the father i.e. the mother’s husband or former husband, is allowed to disavow or disclaim the child by way of li’an or imprecation.

The Qur’anic ayat in Surah Ahzab 33 : 5 states

“Call them by (the names of) their fathers that is juster in the sight of God. But if you know not their fathers, (they are) your brothers (and sisters) in faith.”

This ayat is generally regarded as referring only to adopted children — that they should still have their birth fathers’ names if known. But perhaps it can be looked at as applicable in other situations as well, in the best interests of the child — especially now when there are scientific means to find out who is the father.

Suggestion

Since proof of paternity may now be determined through scientific means, a man should not be allowed to disavow or disclaim a child by was of li’an or imprecation unless he brings scientific proof that he is not the father of the child.

Custody and Maintenance

Under section 85 of the Islamic Family Law Act, the custody of illegitimate children appertains exclusively to the mother and her relatives, and the court may, under section 80, order a woman to pay maintenance to her illegitimate child. There is no provision for the syariah court to order a man to pay maintenance or to contribute towards the maintenance of his illegitimate child.

The traditional Shafi’i legal ruling was that no relationship whatsoever was recognized between a father and his illegitimate child. The authority often referred to in that ruling is a hadith relating to a dispute over custody of a child [re. Sahih Muslim Vol. II Hadith 3435]. Sa’d ibn Abi Waqas claimed that the child was his nephew as his brother Utba had disclosed to him that the child was his natural son, and the child bore a clear resemblance to Utba. ‘Abd ibn Zaman, however, claimed that the child was his brother as he was born on his father’s bed.

In the Prophet’s time, this was a case involving a tug of love, not a case involving a neglected child, and the Prophet granted custody to the family of the legal father and not to the family of the biological father, on the principle that a child belongs to the marital bed. The present day realities are often quite different. The lack of legal responsibility may encourage irresponsible men to indulge in illicit affairs, secure in the thought that even if a child is born as a result of the union, only the unfortunate mothers will have to be responsible for it.

Suggestions

1. When no man is willing to claim responsibility —

Considering the present day realities, the law should provide for the responsibility of the father, as well as the mother, to maintain or contribute to the maintenance of an illegitimate child, especially since it is now possible to determine proof of paternity through scientific means.

2. When there is dispute between more than one man who claims the child as his —

Following the principle that a child belongs to the marital bed, the husband of the mother of an illegitimate child may acknowledge and adopt his wife’s child as his own, and such adoption may be allowed, even if another man brings scientific proof of his paternity, if it is in the best interests of the child to be adopted by the mother’s husband.