Istil Āq and Its Role in Islamic Law

Istilḥāq and Its Role in Islamic Law
Author(s): M. S. Sujimon
Source: Arab Law Quarterly, Vol. 18, No. 2 (2003), pp. 117-143
Published by: Brill
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ISTILHAQ AND ITS ROLE IN ISLAMIC LAW
Dr M. S. Sujimon*
INTRODUCTION
This article seeks to examine the institution of istilhaq and its role in Islamic law by
looking briefly at its background, the definition of istilhiaqaccording to the Muslim
jurists and its differences with other terms used in Islamic family law, like ilhaq,
iqrir, iqri5rbi'l-nasab, di'wa. Further, this article analyses how to validate
and rules governing istilhiaq.Finally, as regard the child of zina will istilh.aq
also be
discussed, irrespective of whether theistilh.aq
mustalhiqis male or female.
BACKGROUND
Disputes concerning rights of paternity have been common in Arabia since pre-
Islamic times. Slave girls would practise prostitution and share their profits with
their masters who actually made them practise this trade. If they gave birth to a
child, various individuals could lay claim to it as their offspring. This kind of claim
was known as "di'wa". If the di'wa was accepted the claimed son assumed the
nasab of this "new" father.' In this context, it was related by AbU Diwud and
others from the narration of Husayn al-Mu'allim from 'Amr b. Shu'ayb from his
father, and from his grandfather, who said, in the conquest of Makkah, a man
stood up and said, "such a boy is my son". The Prophet is reported to have said:
"In Islam, no one is allowed to claim someone to be his father. A decree of pre-
Islamic times has died off (dhahaba amr al-jahiliyyah), the child is belonged to the
bed and the fornicator needs to be stoned".2
At least there are three Traditions which show that istilhaq has taken place. One
Tradition is reported in al-Muwatta' which says:
Yahy5said fromMlik from Ibn Shihib from 'UrwaIbn al-Zubayrthat 'Aishah,the wife of
the Prophet, may Allah bless him and grant him peace, said: "'Utba Ibn Abi Waqqais
disclosedto his brother,Sa'd Ibn Abi Waqqis that he had fatheredthe son of the slave-girl
* (Phd), International Islamic University, Malaysia (IIUM).

Uri Rubin, "al-Walad li'l-Firish on the Islamic Campaign against 'zinfi'" in Studia Islamica, Vol.
LXXVIII, Paris: GP Maisonneuve Larosse, 1994, p. 10.
2
Al-cAsqalmnT,Fath al-Bari, Vol. XII, pp. 38-39.
Arab Law Quarterly, [2003]

C~Koninklijke Brill NV, Leiden, 2003
117
118 ARAB LAW QUARTERLY
of Zam'ahand made him promiseto look afterhim (afterhis death)".In the year of the
Conquest,Sa'd took him and said:"He is the son of my brother.He madea covenantwith
me abouthim". 'Abd Ibn Zam'ahstood up and said:"He is my brotherand the son of my
father'sslave girl. He was born on his bed". They went to the Messengerof Allah, may
Allah bless him and grant him peace. Sa'd said, "He is my brother'sson. He made a
covenantwith me abouthim". 'Abd Ibn Zam'ahsaid:"He is my brotherand the son of my
father'sslave girl and was born on my father'sbed". The Messengerof Allah, may Allah
blesshim andgranthim peacesaid:"He is yours'Abd Ibn Zam'ah".Then the messengerof
Allah, may Allah bless him and granthim peace, said: "A child belongsto the household
(wherehe was born)and the adultereris stoned".Then he told Sawdahbint Zam'ah:"Veil
yourselffromhim", sincehe sawthathe resembled'UtbahIbn Abi Waqqis.'A'ishahadded:
"He did not see her from then on until he met Allah, the Might, the majestic".3
Dispute about paternity of 'Abd b. Zam'ah has been discussed by many

commentators of the hadith, like al-'Asqldni (d. 852 AH), al-Zurqdni (d. AH), Ibn
Qayyim al-Jawziyyah (d. 751 AH) and al-KaIhlni (d. 852 AH). The attention of
those commentators was on the validity of the acknowledgment of paternity
because of three reasons, i.e., (i) the mother of the child was a slave girl; (ii) the
child was illegitimate; and (iii) the claimant of the child, who is not the father, was
allowed to acknowledge paternity.
It is relatedby al-'Asqlaldni,that Zam'ah Ibn Qays b. 'Abd Shams al-Qurashi al- 'A
miri, the father of Sawdah, wife of the Prophet Muhammad, has a child called 'Abd
al-Rahmin; in this context the child is being identified as 'Abd b. Zam'ah from his
slave girl, a Yemenite woman. Thus Sawdahand 'Abd are the children of
(al-Rahmnin)
Zam'ah. The original of this story, in pre-Islamic times, as related by al-Zurqdini,
stated that masters (asyad) used to have many slave girls. These slave girls used to
practice prostitution. The proprieter of a slave girl was also allowed to have sexual
intercoursewith his slave girl. If these slave girls conceived, not only would the sayyid
acknowledge the child, but also the fornicator who had sexual intercourse with the
salve girl would acknowledge it. If the sayyid dies and there was acknowledgmentof
paternity being made, then the heir of the sayyid would acknowledge the child; this
acknowledgmentis established, but the claimant(mustalhiq)who in this context is the
heir of the sayyid, is not allowed to have a share of the inheritance - except if the
acknowledgment takes place before the inheritance was divided - and if the sayyid
denies the claim, the acknowledgmentis not established.4
In this regard, it was told that this Yemenite slave girl, being in the legal
ownership of Zam'ah, has committed fornication with 'Utbah, and the culture of
pre-Islamic times, like this case, determines that if the sayyid of the slave girl
acknowledges paternity of the child, the child is affiliated to the sayyid, but if the
sayyid denies it and it is acknowledged by someone else, then the child would be
returned to the sayyid or physiognomist.5 It is reported that 'Utbah committed
3 Al-Muwatta' of Imam Melik Ibn Anas (translated by Aisha Abdurrahman Bewley), p. 305.
4 AI-ZurqdnT,Sharh al-Zurqdn7, Vol. IV, p. 20.
5 Ibid.
ISTILHAQ AND ITS ROLE IN ISLAMIC LAW 119
zinii secretly with this Yemenite slave girl,6 so the child is regarded as walad zl-
zinazbecause it is the outcome of the fornication which takes place between 'Utbah
and this Yemenite slave girl owned by Zum'ah. During the conquest of Makkah,
Sa'd b. Waqqds is reported to have met the child who could be recognised by his
resemblance with 'Utbah, so Sa'd hugged and carried the child in his arms
(ihtadanahu ilayh), and said to the Prophet Muhammad: "O Prophet of Allah, this
child belonged to my brother 'Utbah, 'Utbah has promised to me before his death
to acknowledge the child conceived by Zum'ah's slave girl".7 In pre-Islamic times,
affiliation of a child's genealogy resulting from zina is established.8
An examination of how paternity was regarded during the pre-Islamic period
would show that the pagan Arabs used to practise nikah al-istibda', that is when a
man desired a good seed he might call upon his wife to cohabit with another an
until she became pregnant by him. After the delivery, such a child is considered to
be the stock of his mother's husband. Consequently, certain groups had come into
tribes in which they did not originally belong, the offspring not belonging so much
to the real husband of the woman, but to the man who had been arranged by the
husband. Thus physical paternity in the pre-Islamic period may override claims of
the stock in which a child had been actually born and brought up.9
Not only that, the tribes of pagan Arabs were allowed to keep as many slave girls
as they wanted, who were basically "working" for their masters and practising
prostitution at the same time. If one of their slave girls delivered a child, the master
and the fornicator would enter into dispute with each other, both claiming such a
child at the same time. Indeed, it was a tavern keeper (khammar) who is said to
have procured for Abi Sufydn the woman who gave birth to Ziyvd b. Abihi. The
Traditions concerning the recognition of the latter's collateral affiliation istilhaq by
Mu'dwiya reveal the existence in al-Ti'if of a quarter of the courtesans (harat al-
baghaya) inhabited in particular by slave girls belonging to the famous physician of
the Arabs, al-HIrith b. Qalidah to whom they had to pay tax.'0
Therefore, at the time when the religion of Islam was not yet established the
customary rules relating to paternity in Arabia were as much in favour of the man
in power. A man who has been procured to have sexual intercourse by the husband
could become the father of a child born to the wife who had sexual intercourse with
him even if that woman was not legally his wife. But, after the Islamic religion was
established, in case that type of litigation arose, it would be brought to the
attention of the Prophet Muhammad. The Prophet Muhammad would adjudicate
that such a child would belong to the master of the slave girl because he is the
owner of the bed, not the fornicator."
6 Al-CAsqalani, Fath al-Barz, Vol. XII, p. 33.

7
Al-Zurqlni, Sharh al-Zurqdni, Vol. IV, p. 20.
8 Ibid.
9 See for details W Robertson Smith, Kinship and Marriage in Early Arabia, Cambridge: the
University Press, 1885, pp. 110-116.
10
The Encyclopaedia of Islam, new edition, Leiden: E J Brill, 1981, p. 133.
" Ibn Qayyim al-Jawziyyah, Zad al-Macdd, Vol. IV, p. 120.
The second Tradition mentioned by Abu Da'wud as narrated by Ibn 'Abbds,

stated that the Prophet Muhammad (peace be upon him) said:
There is not allowed to be any fornication(musd'ah)in Islam. During the pre-Islamic
period, the fornicator may be tied to the paternal relationship (lahiqa bi-'asabatih) and
whoever claims without following the right course (rishdah), the fornicator cannot inherit
from the child and such a child cannot inherit from him.12
Al-Asma' I (d. 216AH/831CE) allowed a freed-man to commit adultery, if the

adultery is with slave girls not with free-women.13This is because most of the slave
girls who commit fornication have the purpose of obeying their masters and all the
gain they may receive from prostitution is to be delivered to their masters. The
slave girls have the responsibility of tax payable as specified by the public
treasury.14
The Prophet made musa'ah invalid in Islam. the child could not be affiliated to
the father as a result of it and he stopped the practice of the jahiliyyah.'5 but al-
Jawhari (d. 398AH/1007CE) maintained that a man could be described as
committing zina or 'ahar with either a slave girl or a free woman, but it was
especially known as musa'ah with a slave girl. Since in the isniid there is an
unknown transmitter, this Tradition which prohibited the child to be affiliated to
the father caused by musa'ah cannot be regarded as a proof (hujjah).16
The third Tradition has been narrated in Sunan Abfi Da'wud:
From 'Amrb. Shu'aybfromhis fatherfromhis grandfatherthat the ProphetMuhammad
(peace be upon him) is reported to have said that each and every claimant (mustalhiq)who
has claimed a child (istalhaqa)after the death of his father to whom he is attributed when the
heirs say he is one of them, that if he is the child of a slavewomanwhom the fatherowned
when he had intercourse with her he is included among those who seek his inclusion, but
gets none of the inheritancewhich has not alreadybeen divided.But if the fatherto whom
he is attributedhad disownedhim he is not consideredas one of the heirs. If he is the child
of a slave woman whom the father did not possess or of a free woman with whom he had
illicit intercourse, he is not considered one of the heirs and does not inherit even if the one to
whom he is attributedis the one who claims paternity,for he is a child of fornication
whether his mother was free or a slave.17
The above Tradition indicates that every admission of paternity was

made valid only after the father had claimed that such a child would(istalh.q)
inherit from
him. The Prophet at the same time judged that everyone born to a slave girl whom
a man owned on the day he had intercourse with her, and whose affiliation had
12
Al-Sijistani,SunanAbi Da'wzid, Vol. II, p. 279; Ibn Qayyimal-Jawziyyah,Zdd al-Mac'd, Vol.
IV, op. cit., p. 119;cf. al-Shawkini,Nayl al-Awtar,Beirut:Dar al-Jil, 1973,Vol. VI, p. 184.
13 Ibn Qayyimal-Jawziyyah, Zad al-Macad,Vol. IV, op. cit., p. 119.
14 TheEncyclopaedia of Islam, new edition,Leiden:E J Brill, 1981,p. 133;cf. al-Shawkani,Nayl al-
Awtar, Beirut:Dar al-Jil, 1973,Vol. VI, p. 185.
'i Ibn Qayyim,Vol. IV, op. cit., p. 119.
16
Ibid.
17 Al-SijistnTi,SunanAb'Dd'wad,Vol. II, pp. 279-280;JamesRobertson(trans.),Mishkatal-Masa
bih, Damascus:al-Maktabal-Islami,Vol. II, p. 222; al-Darimi,Sunanal-Darimi,Vol. II, p. 390; see
also, Ibn Qayyimal-Jawziyyah,Zad al-Macad,op. cit., Vol. III, pp. 119-120.
been accepted by that man, becomes affiliated, so that he does have a share of what
has already been distributed before that. He also has a share of whatever has not
been distributed of the inheritance. But such a child cannot be affiliated to the
father whom he claims if the father denies the claim. If such a child is delivered by
a slave girl who was not in the man's possession, or if such a child is delivered by a
freed-woman through the process of adultery [with the real father], then such a
child will not be affiliated to the real father. But if the father's claim is accepted,
the offspring is a child of adultery (walad zinii), whether the mother of such a child
is a free woman or a slave girl.
According to Ibn Qayyim al-Jawzi, this Tradition refers to the process of
affiliation (istilhaq) at the beginning of Islam, for there was no distribution of
wealth before Islam but that is past practice. Furthermore, Ibn Qayyim argued
that, according to the experts of the hadith, the chain of transmission (isnad) of the
hadith is controversial because the hadith was narrated by Muhammad b. Rishid
al-Makhfill.18 This Prophetic Tradition contains the idea that when a man admits
the paternity of his father after the father has claimed him as his heir
while the child(istilh.aqa)
was [born] from an amah whom the person who caused conception
owned on the day which he caused it, he is affiliated to the one who claimed
affiliation (i.e., the wati').
In other words, if the owner of the slave girl who gave birth admits the paternity
in which he acknowledges that child as his heir, such a child must belong to him
from the day on which the admission of paternity is made. However, such a child
has no right to receive inheritance distributed before the admission of paternity
was declared. This is because this claim gives a new definition of his relationship,
and from that day the child's genealogical relationship with the claimant is
established. Therefore, there is no going back to the situation where inheritance
had been distributed before the claim was made, because the rule (hukm) of the
sonship had not been established at that time.19
Thus the establishment of the genealogy of that child in this context is similar to
the event of conversion to the Islamic religion, as far as inheritance is concerned.
The child cannot be affiliated to his true father if his true father has disowned him.
This is the case even if the heirs of the child's father whom the child claims to be
his father, accept the child's affiliation. However, when the heirs accept the child's
affiliation, while the father whom the child claims to be his, denies it, then no
affiliation takes place [for the child], nor any inheritance because the basis of the
claim, the al, i.e., the father , whom the heirs are opposing, denies the claim.
Ibn Qayyim al-Jawzi holds the view that the affiliation cannot take place if the
heirs to the child's father deny the claim, this all applies when [the mother] is an
amah whom the father owns. When the mother is an amah whom the father does
not own or a free woman with whom the father has committed adultery, there is no
affiliation nor inheritance for the child, even if the fornicator (wiat ') claims that he
was his child. He is a bastard (walad zaniyyah) whether from an amah or a free
18 Ibn Qayyim al-Jawziyyah, Zad al-MaCdd, Vol. IV, op. cit., p. 120.
19 Ibid.
woman, this is the general doctrine of the scholars according to Ishaq's opinion,
and his supporters state that such a child cannot be affiliated to that man or inherit
from him though such a child is claimed by him. In fact that child is a walad zinii,
and therefore ascribed to the family of his/her mother, whether such a woman is a
slave girl or a free woman.20
Therefore, this Tradition shows that the child of fornication cannot be
legitimised by istilhaq, i.e., acknowledgment of paternity, as the Tradition clearly
states that:
It is reportedby Ab5iDi'wuidrelatingfromthe ProphetMuhammad(peacebe upon him)
that at the opening of a tent he came upon a woman who was in the advancedstage of
pregnancy.The Prophetsaid, "Perhapshe (the man accompanyingher) intendsto cohabit
with her. They said, "Yes". ThereuponAllah'smessenger(peacebe upon him) said, "I
havedecidedto cursehim with such a curseas maygo alongwith him to his grave.How can
he own him (the childto be born) that is not lawfulfor him, andhow can he takehim as a
servantfor that is not lawfulfor him?"21
This is because, in principle, the man who is not the proprietor of the slave girl
would not be allowed to cohabit with her. Thus, he would not be allowed to make
an acknowledgment of paternity if such a woman gives birth.
I STILHAQ DEFINED
Muslim scholars have different opinions on istilhaq. The Hanafites use the word
iqrarinstead of istilhaq. IqrKrcan be defined as notification or avowal of a right of
another upon oneself;22al-iqrar - ithbat' an thubiatal-haqq li'l-ghayr' ala nafsihi.23
Iqrir is the confirmation of duty towards someone else by oneself, although Neil B
E Baillie has merely translated iqrar as "acknowledgment".24
Iqrir of paternity is accepted as giving rise to a substantive relationship in all
circumstances in which this acknowledgment cannot positively be proved to be
false.25
Moreover, according to Abil Hanifah, declaration or acknowledgment is not
restricted by rejection but remains so as to prevent any other claim. It is as if a
person who testifies against a man as to the descent of a child from him should
afterwards, on his testimony being rejected by reason of some suspicion, claim the
20
Ibid.
21
Sahih Muslim, translated by cAbdul Hamid Siddiqui, Lahore: Sh. Muhammad Ashraf, Vol. II,
1976, p. 735; cf. Ibn ajar al-Haythami, al-Zawdjir Can Iqtiraf al-Kaba'ir, Beirut, Dar al-MaCrifah,n.d.,
Vol. II, p. 64.
22 Abi Muhammad Ibn Ghinm, Majmac
al-Damdanat,1890, p. 364 cf. Charles Hamilton (trans.), The
Hedaya, Delhi: Islamic Book Trust, 1982, p. 427.
23
See Futawa Alumghiri, op. cit., p. 213.
24 Neil.B E Baillie, A Digest of MoohummadanLaw, 2nd edition, Lahore: Premier Book House, n.d.
p. 406.
25 Norman
Anderson, Law Reform in the Muslim World, Cambridge: The University Printing House,
1976, p. 139.
child as his own. So also, if one having a boy in his possession should say, "He is
the son of my absent slave such an one", and should afterwards say, "He is my own
son", the boy could never be his son according to Abti Hanifah, even though the
slave should deny the boy being his son.26
The IHanafis sometimes used the word "claim" di'wah as acknowledgment of
paternity if it is based on the conception of the child by a certain woman possessed
by the master Sayyid. The works of the Hanafi jurists, for example FutaiwZ
'Alumghiri, states that there are three types of claim (di'wat), namely the claim of
istlZid), the claim of tahrFr (di'wat or di' wat al-milk), and the claim of
tahr.r
shubhat al-milk (di'wat shubhat al-milk).
Di'wat al-istflad is a claim of descent made by a man in which the conception of
the child has taken place while its mother is the property of the claimant.27
Di'wat at-tahrIr is the claim of descent made by a man in which the mother of a
child is the claimant's property provided that the claimant is capable of
establishing the emancipation (al-'itq) of the slave girl he owned.
Di'wat shubhat al-milk is where the father of the sayyid of the slave woman
makes the claim to ownership by paternity at the time of the slave woman's
conception.28
These types of claim refer specifically to women who have been categorised as
"slave women" who give birth from their master "sayyid", where the admission of
paternity made by the master is established. Thus, when these claims are made at
the same time the claim of istilad is preferred to that of tahrfr, and the claim of
is preferred to that of semblance of property (di'wat shubhat al-milk).29
The Mdliki school of law defines al-istihiiq as "admission of paternity", where
tahr.r
only the father's declaration establishes his paternity. A father may admit the
paternity of a child whose affiliation is uncertain and who may reasonably be
attributed to him as being his child, taking into account the differences of age and
local customs.30
Ibn Qdsim al-Mdlikl31 elaborates that if a man acknowledged that a particular
child of unknown genealogy belongs to him, his acknowledgment is allowed,
whether the child is young or old, and whether he agrees or disagrees with the
acknowledgment on the following conditions:
26
Neil B E Baillie, A Digest of Moohummadan Law, 2nd edition, Lahore: Premier Book House, pp.
411-412.
27
Futawa Alumghiri, op. cit., Vol. IV, p. 155; cf. Neil B E Baillie, A Digest of MoohummadanLaw,
op. cit., p. 395; cf. al-ZaylacT Tabyin al-Haqa 'iq, Vol. IV, pp. 331-334; see also al-Shalabi, Hdshzyat al-
Shaykh, printed together with al-ZaylaCi, Tabyin al-Haqd 'iq, Vol. IV, pp. 331-334. According to the
MilikTs, a man having a child born to him of a female slave where his claim and acknowledgment of such
a child is his own becomes ipsofacto the cause of the freedom of his female slave. The woman who gives
birth is called ummn al-walad and stands in relation to her master as his wife where the child is considered
to be free (F H Ruxton, MalikT Law, p. 367).
28 Fatawd
Alunmghiri,op. cit., Vol. IV, p. 155; cf. Neil B E Baillie, A Digest of MoohummadanLaw,
op. cit., p. 395; cf. al-Zaylaci, Tabyin al-Haqd 'iq, Vol. IV, pp. 331-334; see also al-Shalabi, Hadshiyatal-
Shaykh,
29
printed together with al-Zaylaci, Tabyin al-Haqd 'iq, Vol. IV, pp. 331-334.
Futaw6 Alumghiri, op. cit., Vol. IV, pp. 155-156.
30 F H Ruxton, MalikT Law, London: Luzac &
31
Company, 1916, p. 207.
One of the seven Madinese lawyers, died 106.
(1) As long as the acknowledgment made by the man does not contradict reason
(al-'aql). For example, a man makes the claim to paternity of a person who is
older than himself;
(2) As long as his acknowledgment of paternity does not contradict ordinary
phenomena (al-'adah), as for instance, the acknowledger never entered the
country in which the child is born;
(3) As long as the acknowledgment made by him does not contradict divine law
(shar'), as for example, when the acknowledgment which was made by the
claimant is for a child whose paternity has already been identified,32as being
to someone else because it is impossible for a child to have two true fathers;
(4) As long as he is not a slave or client whose acknowledgment is denied by his
patron.33In other words, the father may acknowledge paternity of a child of
unknown genealogy provided that reason or authority does not show him to
be a liar.
The Shifi'is used the term ilhiiq and istilhiiq in different situations. Ilhaiqis
affiliation of the child particularly the child affected by li'an. An example is the
case of Hill b. Umayyah and his wife, where the Prophet Muhammad dissolved
their marriage. Then the child born was affiliated to its mother.34 Istilhaq can be
defined as a claim to acknowledge the paternity of a child affected by li'an.35 The
Shifi'is used the term admission of genealogy (iqrar bi al-nasab) as an affiliation
made by a claimant.36 Furthermore, according to the Shafi'ites an admission of
paternity would only be admissible on condition that it is in conformity with the
cannonical law of Islam (shar') and common-sense (al-'aql). Apart from that, any
acknowledgment of paternity professed by a claimant as one's brother would be
accepted but it would give no claim to any share in the estate. An admission of
paternity would not establish to an adult who opposed it, unless it was legally
proved in some other way that such an adult does not oppose the acknowledgment.
As such, one cannot recognise a child that is notoriously another's.37
However, the rest of the Muslim jurists define iqrar as i'tiraf, "confession".38
Therefore, the distinction which must be made concerning iqrar is that based on
the object of the recognition. If this object is a non-patrimonial right viz, marriage,
paternity, repudiation etc., it is described as iqrar bi'l-nasab.39
More conveniently, Wahbah al-Zuhayll uses the term al-iqr r bi'n-nasab or
32
Salih CAbd al-Samic al-Azhari, Jawahir al-Aklfl - Sharh Mukhtasar al-cAllamah al-KhalFl,
Cairo: Mustafa al-Bdbi al-Halabi wa Awlduhu, Vol. II, 1947, p. 138.
33 Ibid.
34 Abo Zakariyya b. Sharaf an-Nawawi, Mughnial-Muhtdj ild Macrifat Macdn! Alfaz al-Minhcaj,
Beirut: Mu'assasah al-Tarkih al-cArabi, 1958, Vol. III, p. 380.
35 Ibid.
36 Abfi Zakariyyd al-Ans rir,Minhdj al- Talibin, op. cit., p. 68.
37 Abo Zakariyya bin Sharaf al-Nawawi, Minhdj et- Talibn, ed. version, p. 193; cf. al-Malib~ri, Fat
al-Mucin, p. 92.
38 The Encyclopaediaof Islam, new edition, Leiden: E J Brill, 1971, Vol. III, p. 1078, citing Ibn QudA
mah, al-Mughni, Vol. V, p. 137.
39 The Encyclopaedia of Islam, new edition, Leiden: E J Brill, 1971, Vol. III, p. 1078.
iddi"al-walad instead of using the term q. According to him, acknowl-

edgment (al-iqrar) can be divided into two istilh,
types as noted below.
Firstly: the acknowledgment which is made by the acknowledger with respect to

parents and children.40 However, in the case of muli'anah, the husband who takes
such an oath cannot then claim that the child, conceived by his former wife and the
probable cause of the muli'anah, is his own.41
Secondly: the acknowledgment which is made with respect to relationships other

than those between parents and children.42 This requires that the acknowledgment
be confirmed by others, such as the father. For example, if a person acknowledges
that such a person is his brother, his acknowledgment must be confirmed by the
father, or if the father is dead, the acknowledgment must be confirmed by two of
his heirs, or the acknowledger may also show evidence that his acknowledgment is
true.43 Therefore, acknowledgment in this context is allowed and acceptable even
if the claimant is not the father of a child, as has been shown in the hadith that
'Abd b. Zam'ah acknowledged his brother by declaring that a child is the child of
the firish of his father.44
Iqrar bi al-nasab, according to M Shalabi, is giving rise to a substantive
relationship between the claimant and the person acknowledged. This substantive
relationship is direct mubishirah or indirect ghayr mubashirah.Direct relationship
refers to the relationship which existed between the usiil and furii' in one degree,
viz sonship, paternity or maternity. Indirect relationship refers to the relationship
other than that of usi2land furfi', such as brother or uncle, or the usfil relationship
after the relationship of first degree, such as grandfather and grandchildren.45
The Shi'ites used the term instead of istilhiiq. The acknowledgment of
paternity to a child ilh.iq
al-awlad') is established so long as the cohabitation
which has taken place(ilha.q
was on the basis of legal marriage, or resulted from a woman
who gives birth in the form of milk al-yamin, or the woman who gives birth to a
child which resulted from problematic cohabitation, i.e., wat' shubhah.46
Thus, iqrar, q and di'wah are interrelated to each other. If the iqrar is
related to the claim
istilh, of belonging and such belonging is a child, such claim is
considered as istil_q. Iqr_r is more general compared to istihiq but di'wah is a
pregnant slave woman, the claimant's acknowledgement of paternity is established,
but if the claim of the di'wah is the acknowledgment of paternity to the person who
is the offspring of fornication, zina, the acknowledgment of paternity is prohibited
as was mentioned in the Prophetic Tradition.
40 Wahbah al-Zuhayli, al-Fiqh al-Isami wa Adillatuhu, 3rd edition, Damascus: D.r al-Fikr, 1409/
1989, Vol. VII, p. 691.
41 Ibid.
42 Ibid.
43 Ibid.
44 See al-Sancni, Subul al-Salam, op. cit., p. 212.
45 M Shalabi, Ahkam al-Usrah, pp. 694-695.
46
Al-Hilli, Shard'ic al-Islam, 2nd edition, Beirut: Dar AdwA', 1983, Vol. II, pp. 340-343.
To sum up the discussion of the definition, it has been shown that iqrar, istilha
q, di'wah and q are interrelated to each other, except that the term iqrar is
used to refer ilh.
to an acknowledgment which literally means "avow" or "to
establish" the acknowledgment of a man is valid with regard to five persons viz,
his father, mother, child, wife and freed-slave mawla. the acknowledgment of a
woman is valid with regard to four persons viz, her father, her mother, her
husband and her mawlz.47 However, the term istilhaq or is referred solely
to an acknowledgment made by a man with regard to a child. ilhI.q
Thus, they can be
defined as acknowledgment of paternity made by a man who has legal provision
in the shar'iah for having sexual intercourse with the woman involved so that the
man is allowed to claim the acknowledgment of paternity if that woman gives
birth due to the effect of cohabitation.48 It is also important to note that Muslim
scholars agreed that any acknowledgment of paternity made by a claimant must
be from a person who has reached the age of puberty and is sane of mind.
However, only the Hanaffs stress that the claimant must be a nzmumayyiz. This is
because acknowledgment is of limited proof to the acknowledger (al-muqirr)
himself; such limitation cannot be applied to others except by proof
(bayyinah).49
The prohibition of the practice of adoption is not meant to prevent the
acknowledgment from the foster father to confirm that the child's descent is from
him, provided that his capability is in accordance with legal provisions specified by
Islamic law (shar'fah). For instance, if a man acknowledges a certain son of
unknown descent and the acknowledged child is younger than him, then his
acknowledgment can be accepted, and that child is considered to be his real son. As
such he can be affiliated with the acknowledger, and he can also inherit from the
acknowledger, and the acknowledger, and the acknowledger has to adhere to the
effects of such a true sonship.50
Acknowledgment by a parent of a child of unknown parentage as his or hers
naturally differs from adoption, which is the taking of a child of a known or
unknown parentage, but certainly known not to be his or her own child.5' Finally
acknowledgment of paternity is one of the modes to establish legitimacy and formal
recognition of the child which existed where the legal presumption of legitimacy
does not apply.52
47 Baillie, A Digest of MoohummadanLaw, op. cit., pp. 406-408.

48 Even though, according to J
Schacht, an acknowledgment by a mother of such a child is not
privileged. See, for example, Joseph Schacht, The Origins of MuhammadanJurisprudence, op. cit.,
p. 264.
49 AI-Zuhayli, op. cit., p. 691.
so Subhi Mahmassani, al-Mabddi' al-Sharciyyah wa al-Qdnaniyyah, Beirut: Dar al-cIlm Ii all-Mala
yin, 1967, p. 363.
51 Jamal J Nasir, The Islamic Law of Personal Status, London: Graham & Trotman Ltd, 2nd edition,
1990, p. 166.
52 N J Coulson, Successionin the Muslim Family, p. 26.
THE BASIS OF VALIDATING THE ACKNOWLEDGMENT

OF PATERNITY
In the marriage contract nikahfasid and wat' shubhah,a man would not be required
to acknowledge paternity of a child because the child would be regarded as
established from him without claim. It is similarly in the case of licit sexual
intercourse which takes place between a master and a slave girl. Should the slave
girl become pregnant the child would be regarded as established from that man
without claim. This view has been unanimously agreed upon by the majority of
Muslim scholars. As such, paternity of a child borne by a slave girl would be
assumed to be from the slave girl's master.53 According to al-Ksdini, the Hanaff
jurist, as far as the legitimate genealogical relationship is concerned, when a child is
born by a free woman who is married to a free man through clear reason i.e.,
marriage (nikiah),54the acknowledgment of paternity has no need to be claimed by
the father if the marriage was valid, or invalid, fasid. This is because the
woman's pregnancy resulting from the
sah.h,
marriage either is sahTh or flsid, as far as
the child's legitimacy would be considered as legitimate (yathbutu) without claim
(ghayr da'wah) to inheritance, and such a child could not be disowned by her
husband except by li'an.55
Furthermore, according to N J Coulson, permissible sexual intercourse in
Sunnite, the Kharijite and the Shi'ites Islam including Zaydite and Ismi'ilite
sects, was based on two grounds only viz, the dominion that a master possesses
over his slave girl, or a valid contract of marriage nik1ihsahzh.56As a consequence
for the union, a master (mawla) who has had licit sexual intercourse with his slave
concubine, if she becomes pregnant, the child's genealogical relationship of such a
union would be considered as established from her master without any claim, as
long as the sexual intercourse which has taken place was permissible (halil) for
him.57 this is because the child's legitimacy would be based on a legitimate
genealogical relationship (nasab shar'i) of a lawful marriage.58As such, so long as
there is a legal union between a man and a woman, acknowledgment of paternity
(istilhaZq)has no need to be made. However, there are some exceptions in which the
child's genealogical relationship would not be regarded as legitimate unless a father
or a master acknowledges the child's paternity, as can be seen in the following
cases.
Firstly: Semblance in the subject (shubhahfi al-mahal), where the slave girl was the
slave of his own slave (mukiitab),or a slave who, at the order of his master, would
be authorised to engage in trade and allowed to become a shop assistant, and made
5 First Encyclopaedia of Islam, 1913-1936, Leiden: E J Brill, Vol. VIII, 1987, p. 1014.
54 See cAld' al-Din Bakr b. Mascefdal-Kasanri, Baddic al-SandiC fi Tartib al-Shdrcic, Cairo: al-
Matbacah al-cIlmiyyah,Abei
1327 A H, pp. 331-332.
55 Futdwd Alumghiri, Vol. IV, op. cit., p. 153; see also, Neil B E Baillie, op. cit., p. 392.
56 N J Coulson, A History of Islamic Law, Edinburgh: University Press, reprinted 1991, p. 110.
57 Futawc Alumghiri, Vol. IV, op. cit., p. 153; cf. Neil B E Baillie, op. cit., p. 393.
58 Subhi Mahmasani, op. cit., p. 367.
contracts concerning property and accepted liabilities (ma'dhin),59 or a slave held

by him in partnership with another. The paternity of the child would not be
established unless the claimant himself acknowledges that the child was his.60
Secondly: Sexual intercourse which takes place between a master and a slave
concubine (umm al-walad). The salve concubine who gives birth to a child whom
the owner recognises as his offspring, especially when the sexual intercourse was
unlawful (hariam).61The master would be required to claim paternity of the child.
Thirdly: Licit secual intercourse with a slave girl (amah). The genealogical
relationship of the slave girl's child after delivery would not be regarded as
established from the master (mawlch) unless he claims paternity.62It is similarlywhere
the master claims the child's genealogical relationship after delivery, or when the
master claims the child even if the child is still in the womb of its mother. For
instance, if the master says, "the burden with which my slave is pregnant is of me",
or if he says, "this child, which is in this person's womb is of me",63 then an
acknowledgmentof paternity would be regardedas established through such a claim.
Fourthly: In principle, a woman who gives birth in less than six months after a
marriage takes place, then a child cannot be attributed to the woman's husband.
However, if the husband acknowledges paternity of the child, the child's
genealogical relationship would be regarded as established from him.64
Fifthly: The child's genealogical relationship resulting of "weakfirZish".This refers

to a bed of the slave girl (firtish al-amah). Paternity would not be regarded as
established, except if the master of the slave acknowledgesthe paternityof the child.65
These are the exceptions in which a father or a master would be allowed to
acknowledge paternity of a child in order that the child be considered as legitimate.
RULES GOVERNING ISTILHAQ
The issues discussed by the scholars of Muslim family law as regards acknowl-
edgment can be summarised below.
59 First Encyclopaedia of Islam, 1913-1936, Vol. I. p. 17; cf. Bernard Lewis (ed.), Islam from the
Prophet Muhammad to the Capture of Constantinople,p. 239.
See Neil B E Baillie, op. cit., pp. 400-403.
61 Futawd Alumghiri, Vol. IV, p. 153; cf. Neil B E Baillie, op. cit., p. 393.
62
Futawa Alumghiri, Vol. IV, op. cit., p. 154; cf. Neil B E Baillie, op. cit., p. 394; cf. Joseph Schacht,
The Origins of MuhammadanJurisprudence,Oxford: Clarendon Press, 1979, p. 264; cf. Bernard Lewis
(ed.), Islam from the Prophet Muhammad to the Capture of Constantinople,p. 238.
63 Futawa Alumghiri, op. cit., p. 154; see also Neil B E Baillie, op. cit., p. 394.
64 M Mustafa Shalabi, Ahkam al-Usrah, op. cit., p. 687, citing Fiqh al-Imdm Jacfar, Vol. V, p. 300;
al-Hilli, Shardic al-Isldm, Vol. II, p. 42.
69 Ibn CAbdin, Hashiyat Radd al-Hukhtar, Cairo: Matbacah Mustaf- al-Babi al-Halabi wa Awld
duhu, 1966, Vol. III, 2nd edition, p. 550.
Who may acknowledge the child?

Under the Sunni law, the father alone has the right to establish the relationship by
acknowledging that the child is his legitimate child. Neither the mother nor any
other relation has the right to acknowledge the status of sonship for another.66For
example, the the Milikis and the Shdfi'is hold the view that only the
H.anaffs,
father may declare the acknowledgment.67 The Hanballs agree that the father is the
only person who is allowed to declare acknowledgment. Therefore, if the father is
still alive, the grandfather has no influence. However, if the father is already dead
and where only the grandfather is the heir, the grandfather's declaration on the
acknowledgement of paternity is established.68 The Shifi'is agreed with the latter
view. In addition to that, the Ja'faris hold the view that it is not only the father who
may declare the acknowledgment of paternity, but that the mother may also claim
the child if her husband is dead and the heirs of the husband admit that such a
woman is the wife of that deceased person.69
Jamal J Nasir holds the view that it is not only the father who may either
expressly or implicitly acknowledge a child as lawfully his.70 The mother may also
acknowledge or declare her maternity of a child, provided that she was not married
nor in her waiting period ('iddah) at the time of the birth. If the mother is married
to someone else, or in her waiting period ('iddah), her acknowledgment shall not
establish a child's paternity without confirmation from the husband.71 This view
has been agreed with by al-Zuhayll.72 In addition, under the Ja'faris, the mother of
a child may claim after the death of a man that she was his wife, and that a child is
his. Her claim shall be sustained if approved by the heirs, and shall be dismissed if
they deny that she was the wife of the deceased, or if she was not a Muslim at the
time of his death.73
The third person who is allowed to claim acknowledgment of paternity is the
disputed child himself. He may also acknowledge the parentage of a father or a
mother. This acknowledgment shall be subject to the same conditions as specified,
such as the child is of unknown parentage, that it is not the issue of unlawful
intercourse, that the age difference admits of such a relationship, and that the
66 Syed Ameer, Ali, Student's Handbook of Mahommedan Law, 7th edition, Thacker Spink & Co,
1925, p. 78; cf. Robert Roberts, The Social Laws of the Qur'an, London: William and Norgate Ltd,
1925, p. 51.
67 Al-MallbrlT, Fah al-Muc1n, p. 92; cf. F H Ruxton, Mdliki Law, London: Luzac & Company,
1916, p. 207; cf. Abif Zakariyydb. Sharaf an-Nawawi, Mughni al-Muhtdj ild Macrifat Mac'nT Alfaz al-
Minhdj, Beirut: Mu'assasah al-TarkThal-cArabi, 1958, Vol. III, p. 380; cf. The Hedaya (trans.) Charles
Hamilton, Delhi: Islamic Book Trust, 1982, pp. 430-440; Robert Roberts, The Social Laws of the Qur'd
n, p. 51.
68 Ibn Qudimah, al-Mughni, Cairo: Ddr al-Manar, 1367 A H, Vol. Vii,
p. 415.
69 Neil B E Baillie, A Digest of MoohummudanLaw, Second Part, Labore: Premier Book House, n.d.,
p. 289.
70 Jamal J Nasir, The Islamic Law of Personal Status, London: Graham & Trotman Ltd, 2nd edition,
1990, p. 163, citing Omar Abdullah, Ahkdm Shari cah al-Islamiyyah fl al- Ahwdl al -Shakhsiyyah, 6th
edition, Alexandria, 1968.
71 Ibid., p. 588.
72 Al-Zuhayll, op. cit.,
p. 690.
73 Jamal J Masir, op. cit., pp. 163-164, citing al-Hilli, op. cit., pp. 90-91.
acknowledgment is confirmed by the parent.74Apart from this view, according to

D F Mulla, the acknowledgment is not limited, whether the acknowledged child is
a son or a daughter.75
The age of the parties

Many Modern scholars maintained that the ages of the parties must not be
impossible,76 and the acknowledged child must be at least twelve-and-a-half years
younger than the claimant. Later jurists of Muslim family law who agreed with the
Hanaffs and the Mdlikis are Muhammad Abti Zahrah,77AA A Fyzee,78 Tanzil ur-
Rahman,79Tyabji8soand Robert Roberts.81
The child must be of unknown descent

The majority of the jurists agreed that in Muslim family law the child to be
acknowledged by the claimant must be of unknown descent.82
The child must be legitimate

Some of the contemporary jurists maintained that the claim for acknowledgment of
7" Ibid.
75 D F Mulla, op. cit., p. 478.
76 D F Mulla, Principles of Mahomedan Law, op. cit., pp. 477-487; Faiz Badruddin Tryabji,
MuhammadanLaw - The Personal Law of Muslims, op. cit., pp. 264-265; Syed Ameer, Ali, op. cit., p. 78;
Muhammad AbQ Zahra, Family Law, in Majid Khadduri and Herbert J Liebesny (eds.), Law in the
Middle East, Washington DC: The Middle East Institute, 1955, pp. 152-153; Baillie, op. cit., p. 408;
Wahbah al-Zuhayli, al-Fiqh al-Islamn wa Adillatuhu, 1409/1989, Vol. VII, p. 691; F H Ruxton, Maliki
Law, p. 207; cf. al-Dhahabi, al-Ahwal al-Shakhsiyyah, 1378/1958, p. 339; Shalabi, Ahkdm al-Usrah,
1393/1973, p. 696.
77 Muhammad Abfi Zahra, Family Law, in Majid Khadduri and Herbert J Liebesny (eds.), Law in
the Middle East, Washington DC: The Middle East Institute, 1955, pp. 152-153.
78 Fyzee, A A A, Outlines of Muhammadan Law, 2nd edition, London: Oxford University Press,
1955, p. 166.
79 Tanzil ur-Rahman, A Code of Muslim Personal Law, 1st edition, Karachi: Hamdard Academy,
1978, Vol. I, p. 713.
80 Faiz Badruddin Tyabji, MuhammadanLaw - The Personal Law of Muslims, 3rd edition, Bombay:
N M Tripathi & Co, 1940, pp. 264-265.
81 Robert Roberts, The Social Laws of the Qur'an, London: William and Norgate Ltd, 1925, p. 51.
82 Al-Malibfri, Fath al-Mucin, p. 92; cf. Baillie, op. cit., p. 408; F X Ruxton, Mdliki Law, p. 207;
Jamal J Nasir, The Islamic Law of Personal Status, p. 163 citing Omar Abdullah, Ahkam Sharciah al-Isd
miyyah ft al- Ahwdl al -Shakhsiyyah, 6th edition, Alexandria, 1968; Muhammad Abfi Zahra, Family
Law, in Majid Khadduri and Herbert J Liebesny (eds.), Law in the Middle East, pp. 152-153; Syed
Ameer, Ali, op. cit., pp. 78-79; al-Zuhayli, al-Fiqh al-Islami wa Adillatuh, 1409/1989, Vol. VII, p. 691;
Tanzil ur-Rahman, A Code of Muslim Personal Law, 1978, Vol. I, p. 713; D F Mulla, Principles of
Mahomedan Law, 1991, pp. 477-478; David Pearl, A Textbookon Muslim Personal Law, 1987, p. 90;
Abdur Rahim, The Principles of MuhammadanJurisprudence, 1911, p. 343; Keith Hodkinson, Muslim
Family Law - A Sourcebook, 1984, p. 308; Syed Ameer, Ali, op. cit., p. 78; Faiz Badruddin Tyabji,
MuhammadanLaw, 1940, pp. 264-265; Fyzee, A A A, Outlines of MuhammadanLaw, 1955, p. 166; cf.
al-Zuhayli, al-Fiqh al-IslJmd wa Adillatuh, 1409/1989, Vol. VII, p. 691; Mustafa Shalabi, Ahkdm al-
Usrah, 1393/1973, p. 695; al-Dhahabi, al-Ahwdl al-Shakhsiyyah, 1378/1958, p. 339; Robert Roberts,
op. cit., p. 51.
a child can only be made on the basis of legitimacy.83 Nevertheless, there are
Muslim jurists who are of the opinion that acknowledgment of paternity is valid
although the child is illegitimate.
The other issue which is considered to be significant in the discussion of the
acknowledgment of paternity, among the scholars of Muslim family law, is
should be confirmed by the acknowledged person.
whether the acknowledgment istilha.q,
The Hanaffs maintained that there must be no rebuttal of the acknowledgment84
and this view has been agreed upon by modern jurists.85
Norman Anderson maintained that an acknowledgment of lawful paternity (iqra
r) will suffice to establish the legitimacy of a child born in less than the minimum
period of gestation after the marriage of his mother to the one who made the
acknowledgment, since conception could have occurred prior to their valid
contract of marriage, provided that it would not constitute an illicit sexual
relationship, or a child born to the man concerned might have been due to a
genuine mistake wait' shubhah. The acknowledgment is not meant to legitimise the
illegitimate, but rather is a means of establishing legitimacy.86
According to the Hanaffs, acknowledgment of paternity iqrTirwith respect to
infants is established even though the acknowledger is sick, provided the boy
verifies the acknowledgment.87
According to Muslim family law, a child who is really legitimate by birth,
becomes legitimated by force of an acknowledgment; this is whether such
acknowledgment is expressed, or implied, directly proved, or presumed.88
To sum up, the rules of Muslim family law pertaining to acknowledgment of
paternity by a Muslim father of another as his son are rules of the substantive law
of inheritance, whereby unless there are legal impediments, the person acknowl-
edged is regarded as a legitimate son, and therefore, an heir.
83 See, for example, Muhammad Abfi Zahra, Family Law, in Majid Khadduri and Herbert J
Liebesny (eds.), Law in the Middle East, Washington DC: The Middle East Institute, 1955, pp. 152-
153; Anderson, Law Reform in the Muslim World, 1976, pp. 139-140; Fyzee, A A A, Outlines of
Muhammadan Law, 1955, p. 166; Hodkinson, Muslim Family Law, 1984, p. 308; Syed Ameer, Ali,
op. cit., p. 78; Tyabji, Muhammadan Law, 1940, pp. 264-265; D Pearl, A Textbook on Muslim
Personal Law, 1987, p. 90; D F Mulla, Principles of Mahomedan Law, 1991, pp. 477-478; al-Dhahabi,
al-Ahwal al-Shakhksziyyah, 1378/1958, p. 340; Shalabi, Ahkam al-Usrah ft al-IslJm, 1393/1973,
p. 697.
84 See Baillie, op. cit., p. 408.
85 See, for example, Muhammad Abi Zahra, Family Law, in Majid Khadduri and Herbert J
Liebesny (eds.), Law in the Middle East, 1955, pp. 152-153; D F Mulla, Principles of Mahomedan Law,
1991, pp. 477-478; David Pearl, A Textbook on Muslim Personal Law, 1987, p. 90; K Hodkinson,
Muslim Family Law, 1984, p. 308; Tyabji, Muhammadan Law, 1940, pp. 264-265; Fyzee, A A A
Outlines of Muhammadan Law, 1955, p. 166.
86 Norman Anderson, Law Reform in the Muslim World, Cambridge: The University Printing House,
1976, pp. 139-40.
87 The Hedaya, (trans.) Charles Hamilton, Delhi: Islamic Book Trust, 1982, pp. 430-440.
88 Nawab A F M Abdur Rahman, Institutes of Mussalman Law, p. 190.
ACKNOWLEDGMENT OF PATERNITY ISTILHAQ AS

REGARDS A CHILD OF MULA'ANAH
Li'an defined
Li'an can be defined as an oath. A husband may without legal proof allege adultery
by his wife without becoming liable to the punishment by which qadhf is
threatened, and deny the paternity of a child borne by the wife.89
In the language of the Shari'ah, refers to an evidence given by the husband,
li'nm
strengthened by oaths, by which the husband invokes the curse (la'ana). From this
process they shall bring the wrath of Almighty God upon themselves if they should lie;
for the husband it is (hadd)(the legal punishment) for qadhf(accusationof infidelity by
persons) [of irreproachablecharacter]and for the wife hadd, for incontinence.90
The Mdlikis defined li'an as an oath by the husband that his wife has committed
adultery; or the husband disowned the conception of the wife and the wife takes an
oath denying it. On her refusal to testify, hadd punishment has to be inflicted on
her as ordered by the judge.91
Hence, li'an denotes the husband who alleges his wife has committed adultery,
without legal proof, the wife is then entitled to file suit to bring about a retraction
of her husband's statement, or the swearing of an oath by her husband that his wife
is guilty of zina. His insistence upon her guilt under oath would thus bring about
the wrath of Almighty God upon him if he accuses her falsely.92
For any charge made by a husband against his wife to be valid, the allegations
must be testified to by four witnesses. If the accusation he made is not testified to
by four witnesses, the allegation is considered null. Allah has stated in the Qur'dn:
... and those who launcha chargeagainstchastewomen,and producenot four witnesses(to
supporttheirallegations), flog themwith eightystripes,and rejecttheirevidenceeverafterfor
suchmen are wickedtransgressors. Unless theyrepentthereafterandmend theirconduct,for
God is Oft-Forgiving, MostMerciful.And for thosewho launcha chargeagainsttheirspouses,
andhave[in support]no evidencebut theirown,theirsolitaryevidence(canbe received)if they
bearwitnessfourtimes(withan oath)by God thattheyaresolemnlytellingthe truth.Andthe
fifth(oath)shouldbe thattheysolemnlyinvokethecurseof Godon themselvesif theytella lie.93
These Qur'5inicverses have been revealed specifically to solve the first li'an in
Islim that occurred to Hildl b. Umayyah, who accused his wife of committing
adultery with Sharik b. Samhi'. At the end, the marriage between Umayyah and
his wife was repudiated by the Prophet Muhammad (peace be upon him).94
89 Shorter Encyclopaediain Islam, 1961, p. 569.

90 First Encyclopaediaof Islam, 1913-1936, Leiden: E J Brill, 1987, Vol. V, p. 24.
91 Hashiyat al-cAdawic ald Sharh Abi al-Hasan li Risalat Ibn Aby Zayd al-Qayrawdni, Cario: Dar
Ihya al-Kutub al-Arabiyyah, n.d., Vol. II, p. 98.
92
John Esposito, Muslim Family Law in Egypt and Pakistan, pp. 78-79.
93 Al-Qur'An XXIV: 4-7.
94 See for details of the subject in al-cAsqalani,Fath al-Bdra bi-Sharh al-Bukhdr-, 2nd edition, Cairo:
D5r al-Diyan li al-TurAth, 1988, pp. 351-371; cf. al-Tabari, Abit Jacfar Muhammad bin JarTr,Jamic al-
Baydn can Ta'wil al-Qur'dn, Cairo: Mustafa al-Babi al-Halabi wa Awladuh, 1968, Vol. XVIII, p. 85.
In Sahih Muslim 'Abdullah Ibn 'Umar reported:

We were on the night of fridaystaying in the mosque when a personfrom the Ansarcame
and said: If a personfinds his womanalong with a man and he speaksabout it, you would
lash him, and if he kills, you will kill him, and if he keeps quiet he shall have to consume
anger.By Allah, I will definitelyask abouther fromAllah'sMessenger(maypeace be upon
him) and askedhim thus: If a man were to find with his wife a man and if he were to talk
about it, you lash him, and if he killed, you would kill him and if he were to keep quiet, he
would consume anger,whereuponhe (the Holy Prophet)said: Allah, solve (this problem)
and he began to supplicate(before Him) and the verses pertainingto li'dn were revealed:
"Those who accuse their wives and have no witness except themselves".95
The person was then put to the test according to these verses in the presence of the
people. He and his wife came in the presence of Allah's Messenger (may peace be
upon him), and they invoked curses (in order to testify their claim). The man swore
four times in the name of Allah that he was one of the truthful and then invoked a
curse for the fifth time saying: "Let there be the curse of Allah upon him if he were
among the liars". Then she began to invoke a curse. Allah's Messenger (may peace be
upon him) said to her: "Just wait (and curse after considering it)", but she refused
and invoked a curse and when she turned away, he (Allah's Apostle) said: "It seems
that this woman shall give birth to a curly-haired black child" and she did.96
And it has been reported that, "she was pregnant and her son was ascribed to
her, and it became customary that such (a son) would inherit from her and she
would inherit from him in the share prescribed by Allah for her".97 As far as the
tradition of the Prophet Muhammad (peace be upon him) is concerned, after the
procedure of li'in occurred both the husband and the wife (al-Mutald'inayn) have
to be separated. In the case of Hilal's wife, she was pregnant and Hilal disowned
the child, so the child was ascribed to his mother, and according to the traditions of
the Prophet Muhammad (peace be upon him), the child would inherit from her
and she would inherit from him as to what has been prescribed by Allah to her.98
Furthermore, in Sunan Ibn Mdjah it is stated that the illegitimate child would
not inherit his father's property, the father would not inherit from his child, as was
narrated by 'Amr Ibn Shu'ayb from his father, and from his grandfather Prophet
Muhammad (peace be upon him), who has said: "Whoever commits adultery with
a slave girl (amah) or a free-born girl (hurrah) and because of that adultery such a
woman get pregnant, the child will be regarded as an illegitimate child - he does
not inherit from his illegal father nor does his illegal father inherit from him".99
95 Al-Qur'A, Surah al-Nofr (24):6.

96 Sahih Muslim,translatedby CAbdul Hamid Siddiqi, Lahore:KashmiriBazar, 1976, Vol. II, pp. 780-781;
see also al-Tabari, Jaminal-Bayan Can Ta'Ill al-Qur'an, Cairo: Mustafa al-BibTal-Halabi wa Awleduh, n.d.,
Vol. XVIII, p. 84; cf. Shams al-Din al-Sarakhsi, al-Mabsat, Beirut: Da al-MaCrifah,1986, Vol. VII, p. 39.
97 Ibid., p. 779.
98 See AbQ JacfarMuhammad b. JarTral-Tabari, Jamic al-baydn Can ta'wil al-Qur'dn, Cairo: Must afa
al-Babi al-Halabi wa Awlduh, 1968, 3rd edition, Vol. XVIII, p. 85.
99 Al-QazwTni, Ab cAbdullah Muhammad, Sunan Ibn Mcajah, Cairo: C sa al-Bbi al-Halabi wa
ShurakAh, n.d., Vol. III, p. 917; see also, AbO cIsaMuhammad bin Cisabin Saurah, al-Jamic al-Sah7h
(Sunan al-Tirmidhi), Cairo: Mustafa al-Babi al-Halabi, 2nd edition, 1975, Vol. IV, p. 428.
In referring to this matter Ibn Qayyim al-Jawzi is of the opinion that the
disjunction of the child's descent from the fatherside is absolute. This is why the
Prophet Muhammad (peace be upon him) decided to pronounce judgment that the
son from the fornicating woman cannot be claimed as a son from the father, and
this is also the view of the majority of Muslim scholars.'00According to al-Shlfi'i,
if the father feels the child who was borne by his wife is not his, he should disown
the child immediately.10' This is especially so if he is a respected person in his
community. This is because delaying such a disownment would affect his
reputation in his community and this is the objective of li'an itself in Islam.
With regard to the case of a child by the effect of li'an, the Shifi'is and Abfi
Thawr are of the opinion that the acknowledgment of paternity from the father of
such a child is established, whether such a child is alive or dead, wealthy or poor.
In contrast, al-Thawri holds the view that if the father of such a child
acknowledged the dead child, and if the dead child is rich, his acknowledgment
of paternity is not established because it might be that the claim is because of its
wealth. But if the dead child is poor (lam yakun dhfi man), then the acknowl-
edgment of paternity from the father is established.
The Hanaffs, on the other hand, maintained that if a dead child left a son then
his genealogical relationship from the acknowledger is established, and his son's
genealogical relationship is to be affiliated to him. However, if the child left no son,
his father's acknowledgment of paternity is not valid and the claimant (al-mudda'i)
is not entitled to inherit, because the genealogical relationship of such a child is
discontinued by the death of his son. Thus the admission of paternity is for his son
and the deceased genealogical relationship is followed.
Ibn Quddmah, however, has stressed his view in saying that the father of such a
child disowned by the process of li'Cinhas the right to acknowledge the paternity so
long as the child is alive. Even if such a child has a son, the father has the right to
claim the acknowledgment of paternity, because in his opinion the son's son is
subsequent to the son's genealogical relationship.102
It is of interest to note that in Islam the child of zina has been seen as similar to
the slave, owing to the fact that the child of adultery or fornication has no
affiliation to its father. As reported by Sa'd b. al-Musayyib from Burah b. Aktam,
the Prophet Muhammad has instructed that if anyone who married a girl who was
no longer a virgin had sexual intercourse with the girl who was pregnant, he had to
pay the marriage dower to that girl in order to legalise his intercourse with her. In
this hadith the Prophet said such a child is regarded as the slave of that man, and
the hadith also states that the marriage of that couple should be dissolved after the
woman has given birth to the child.103Therefore, the majority of Muslim scholars,
100ooIbn al-Qayyim al-Jawziyyah Zdd al-Macdd fi Hady Khayr al-cfbdd, Beirut: Dir al-Kutub
al-CArabi,n.d., Vol. IV, p. 109.
101
Abfi Zakariyya bin Sharaf an-Nawawi, Minh j al- libin wa Cumdahal-Muftn, Singapore:
Mu'assasah Sulayman Marc%,n.d., p. 103.
102
Ibn QudAmah,al-Mughni, op. cit., Vol. VII, p. 415.
103 Ibn Qayyim, Zad al-Ma'dd, Vol. IV, p. 4.
including Ahmad b. Hanbal, hold the view that the above hadith has stipulated
that marriage with a woman who is pregnant by adultery or fornication is
consideredto be void (batil).104
Acknowledging paternity of illegitimate children

In Muslim family law it is legallyvalid to acknowledgepaternityof a child whose
genealogy is unknown,includingthe illegitimatechild (waladghayr shar'i).It has
been clearlyimpliedthat acknowledgementof paternityiqrairbi al-nasabor istilhaq
can legitimise a child whose status is unclear or unknown. So far as the
acknowledgment of paternity is concerned, Muslim scholars have discussed
whether the acknowledgmentof paternity istilhaqis confined to a child born
through a legal union. The following are the discussionswhich took place among
the Muslim scholars regardingthe acknowledgmentof paternity relating to a
foundling (laqit), the acknowledgmentof paternity as regards the child of
fornication (zini), and the acknowledgmentof paternityas regardsthe child of
mula'anah.Hence, it is importantthat illegitimatechildren should be acknowl-
edged, in orderto avoid being discarded,which ultimatelycreatessocial problems
for the Islamic Government.
Acknowledgment of paternity (istil~iq) as regards the foundling (laqit)

Muslim scholarshave differentviews on the status of a foundling whose parents
cannot be traced, whether such a foundling is considered legitimate (shar'i)or
illegitimate (ghayrshar'i).The provisions which have been stipulated as regards
such a foundling (al-laqTt)depend on how many individualclaimantsmake the
acknowledgment.it seems that acknowledgmentof paternityistilhZiq can be used as
a method to establish the genealogical relationship of the foundling. Muslim
scholarshave had lengthy discussionson the foundling'slegitimacy,dependingon
the number of claimant's, religious beliefs, and the sex of the claimant who
acknowledgedthe foundling. A summaryof the discussionsfollows.
Acknowledgmentof paternity made by one claimant

According to the Hanafis, the Shdfi'is, the Hanballs and the Ja'faris, acknowl-
edgment of paternity made by one claimant is established.05 According to the
Ja'farites,this is regardlessof whetherthe claimantis a free born (hurr),or a slave,
104 Ibid.
105 For the school of Hanafi law, see for example al-ZaylaCi, Tabyin al-Haqd'iq, Vol. III, p. 298; cf. A
F M Abdur Rahman, Institutes of Mussalaman Law, p. 194; al-Haskaff, Sharh al-Durr al-Mukhtar, Vol.
I, p. 490; cf. al-SarakhsT,al-Mabsat, Vol. X, p. 211; for the Jacfari school of law see for example al-Hilli,
Shardic al-Islam, Vol. III, p. 287; for the Hanbali work see Ibn Qudimah, al-Mughni, op. cit., Vol. V,
p. 694; cf. al-KasanT,Badadi al-Sandic, Vol. VIII, p. 3986; cf. al-Bajtri, Hashiyat al-B jari cald Ibn Qd
sim al-Ghazzi, Vol. II, p. 61; cf. al-Ramli, Nihdyat al-Muhtaj, Vol. V, p. 462.
a Muslim or an infidel (dhimmi).'06According to the Mdlikis, a person who takes a

foundling, and then another person comes along and claims the child as his, then
the claim made by the latter would not be accepted unless he could provide
proof.1'07According to the Shdfi'is, if the relative (ahl) of the child could confirm
the child's genealogy was attributed to the claimant, the claim would be accepted;
otherwise it would not.'18 According to the Hanballs, the acknowledgment made
by a claimant would manifest sincerely (mahd) for the benefit of such a foundling
[due to the conjunction (ittisal) of the child's genealogy] between the acknowl-
edged child and the claimant. However one condition which has been emphasised
by the Hanballs is that the acknowledgment of paternity would not harm [the
religious belief of the foundling]. A similar rule applies to acknowledgment of
property (miil).109According to the Hanaffs, any acknowledgement of paternity
made by a claimant referring to a foundling would be acceptable and no witnesses
would be required. This is because the establishment of the foundling's
genealogical relationship was based on the assumption that the claimant was the
owner of the bed (firash)."10
The Shdfi'Its is reported to have said that a foundling who was claimed by a
person who was not the finder would be regarded as established; the foundling
should be taken from the finder because the Shifi'is believed that the claimant
would be regarded as the father of the foundling so he would have the right to
acknowledge his child because the acknowledgment of a father would be regarded
as similar to a claim with proof (bayyinah).111
On the other hand, if the claimant of the foundling is a non-Muslim (dhimmi),
Muslim scholars are not in agreement with each other. The Shdfi'is and the
Hanballs, for example, are in favour of equating the dhimmiand the slave ('abd) as
a Muslim in this matter, except that the slave cannot be bound to be responsible
for the suckling (hadanah) of the foundling. This is because a slave would normally
be busy offering his service to his master sayyid. The slave normally has no money
to support the foundling. As the sayyid of the slave, on the other hand, if he is the
claimant of the foundling, he also cannot be bound to be responsible for the
suckling (hadiinah) of the foundling, because the foundling is considered as free
(hurr) [so the sayyid has no right to support the hadanah of the foundling].112
In principle, the Hanafls, the Shifi'is and the HIanbalies hold that acknowl-
edgment of paternity made by the dhimmfand 'abd is accepted.113According to the
106 Al-Hilli, Sharaic al-Islam, Vol. III, p. 287.

107
108
Al-Mawaq, al- Tdj wa al-Aklil, printed in the margin of al-Hattt~b,Mawdhibal-Jalil, Vol. III, p. 82.
A1-Malibrli, Fath al-Mucin, p. 92.
109 Ibn Qudsmah, al-Mughni, op. cit., Vol. V, p. 694.
110
Al-Sarakhsi, al-Mabsat, Vol. X, p. 217.
1 ' Ibn Baddic al-Sand'ic, Vol. VIII, p.
Qudamah, al-Mughni, op. cit., Vol. V, p. 694; cf.
al-Kas-nT,
3986; cf. al-Bajiri, Hashiyat al-Bdji-ri cald Ibn Qdsim al-Ghazzi, Vol. II, p. 61.
12 Ibn Qudimah, al-Mughni, op. cit., Vol. V, p. 694; cf. al-KswnTi,Baddic al-Sandic, Vol. VIII, p.
3986; cf. al-Bdjuri, Hashiyat al-Bdjari cald Ibn Qdsim al-Ghazzi, Vol. II, p. 61; cf. al-Ramli, Nihdyat
al-Muhtdzj, Vol. V, p. 462.
113
Al-Zaylaci, Tabyin al-Haqd'iq, Vol. III, p. 298; cf. al-Haskaff, Sharh al-Durr al-Mukhtdr, Vol. I,
p. 491.
Hanaffs, if the one who acknowledged the child was a dhimmf,the foundling's diy5
nah would still be considered as a Muslim.114 However, in matters relating to
suckling and maintenance (nafqah) of the foundling, the Shdfi'ts and the
Hanballs (had.inah)
insisted that it should be the responsibility of the public treasury (bayt
al-mal). The justification made by the Shdfi'is and the Hanballs as to why a
foundling was allowed to be affiliated to an infidel is because the marriage which
occurred between a dhimm! and his wife indicates stronger ties between them, as
compared to acknowledgment of paternity made by a slave. This is because a
foundling who was claimed by a slave was not sure whether it was the outcome of
his material relationship with his wife, or it was the permissible outcome of the
doctrine cohabitation by concubinage (milk al-yamin) that establishes the rule of
firilsh."5 Furthermore, the Shdfi'is hold that even though a genealogical
relationship of the foundling made by an infidel is accepted, this is not to be
taken as meaning that the religious belief (diyanah) and genealogy (nasab) of the
foundling would also be an infidel, except if he, i.e. the claimant, could prove
otherwise. However, the Shdfi'is insisted that any genealogical relationship of a
foundling made by an infidel without proof (bayyinah) would be based on whether
the child was found. If the child was found in a Muslim quarter, he was considered
as Muslim, and if the child was found in dar al-kufr he was considered as a kiifir."16
Abii Thawr conversely holds that the foundling's genealogical relationship is not
established from an infidel because the foundling is considered as a Muslim, arguing
the fact that affiliating a foundling to an infidel may harm a child' religious belief."'7
Al-Haskafi, a follower of the Hanafis,"18and the Hanbalis are reported to have
declared that if a non-Muslim (dhimmi) acknowledged paternity a child of unknown
genealogy was established on the condition that the acknowledgment does not harm
(idriir) the foundling's status. Nevertheless, the establishment of a child's genealogy
made by a non-Muslim (dhimmi) does not mean the religious belief of the foundling
would also be (dhimm!) as his. Moreover, a non-Muslim (dhimmT)claimant would
have no right to the custody (hadanah) of the foundling. This is because even though
the acknowledgment made by a non-Muslim (dhimmf) would be accepted, in terms
of the child's religious belief it cannot be considered as a dhimmY,but should be
regarded as a Muslim. As such, the dhimmi'sacknowledgment would be accepted as
proof of identification of the child's genealogy. Any acknowledgment of paternity as
regards a foundling made by a dhimmi should be considered as exceptional (tukhalzif
al-zahir) and conditional. The same rule would apply if the acknowledgment was
made by a slave. The foundling's status remains as Muslim, and free, even though
the claimant is a non-Muslim (dhimmf), or a slave.119
With regard to a Christian who claimed acknowledgment of paternity of a
"14 AI-Haskaft, Sharh al-Durr al-Mukhtdr, Vol. I, p. 491.

115 Ibn al-Mughni, op. cit., Vol. V, p. 694.
116 Qud-mah,
Al-B•ajTi, Hashiyat al-Badjrrirc ald Ibn Qdsim al-Ghazi, Vol. II, p. 61.
117
See Ibn Qud.mah, al-Mughni, op. cit., Vol. V, p. 694.
118 See for example al-HaskafY, Sharh al-Durr al-Mukhtar, Vol. I, p. 491.
119 Ibn Qud5mah, al-Mughni, op. cit., Vol. V, p. 694.
foundling, it is interesting to learn that the Hanaffs and the Shdfi'is agreed to
declare that either the finder of the foundling or another who claimed the child
found his son, then the paternity is established by a mere declaration even if he is a
Christian'20 or a Jew.121
Al-Shafi'i clearly says in al-Umnm:
If a Christianestablishesproofbeforethe Muslimcommunitythat such a child is his son of
the bed, his acknowledgement of paternityis establishedand the religionof such a child is
similarto the religionof his fatherunless if such a child declaresthat his religionis not
similarto the religionof his father.This is because,basedon our knowledgethat such a
child was assumedto be born in his bed.122
It seems that could be used as an instrument to legitimised abandoned
istilh.aq
children or a child whose parents are not identified, hence, the jurists have
outlined how to resolve the issue of parentless children by looking at how the child
was claimed.
Acknowledgmentof paternity made by a woman

Muslim jurists have different views on whether the acknowledgment made by a
woman may legalise the foundling's genealogical relationship.
The Shdfi'is re reported to have no disagreement with each other as to whether
the acknowledgment of paternity (istilhiiq)made by her would establish the child'
genealogical relationship. The first group hold that the woman's acknowledgment
would be regarded as established based on the hadith reported by Hurayrah
Abti
that the Prophet says:
Thereweretwo womenwith two children,It is reportedthata wolf tookaway(dhahaba) one
of the children.One of the women said to another,the wolf has takenawayyour child.But
the other woman denies saying the wolf has taken away her child. Both women were
reported to have complained to the Prophet Da'wfid and the Prophet Da'widdhas
adjudicatedthe child to the kubr.then they cameto see the ProphetSulaymintellinghim
the matter.The ProphetSulaymain requiresa knifeso thathe wouldbe ableto divideit. The
sughr said to the ProphetSulaymin. "O ProphetSulayminAllahgives you mercy,the child
belongsto her". It is reportedthat the child was attributedto the sughr.
The first group justifies it as the Tradition implies that a woman would be allowed
to acknowledge paternity, because a woman is regarded as one of the parents. The
second group holds that a woman would not be allowed to acknowledge paternity
because a woman's acknowledgment would normally be capable of providing
witnesses. This view is reported to be the view of aa. The third group maintains that
the woman's acknowledgment would be acceptable if the acknowledgment was made
by an unmarried woman.123The Hanafis and the Ja'faris agree on the idea that if a
120
Muhammad Idris al-SheficT,al-Ummn,Vol. VI, op. cit., p. 249.
121 Mohammed Kadri
Pasha, MohammedanPersonal Law, p. 92.
122
Muhammad Idris al-Shffict, al-Umm, Vol. VI, op. cit., p. 249.
123
Al-BTjirmi, Bijirmc ala al-Khatib, Vol. III, p. 290.
married woman acknowledge a foundling that her acknowledgment is established.124

The Hanafis have insisted that the woman's acknowledgment could be accepted,
provided her husband could approve his wife acknowledgment by a formal consent,
or the wife could prove the child was the issue of her union with her husband, by
establishing its identity through the witness of a woman or a midwife who was free
and known for her honesty.125According to the Hanbalis, the laqit can be affiliated to
a married woman because a woman, as a mother, is one of the parents. Therefore,
acknowledgment made by a married woman who is the mother of a child is
established as though the child is claimed by its father, because there is a possibility
that such a foundling is really her child, whether the child is the outcome of her
marriage, or semblance cohabitation (wat' shubhah),or even if the foundling was the
outcome of zina. Thus, the child may be affiliated to its mother not to its father,
because the child cannot be affiliated to its father without a claim. This is because the
probability is that the man has the child from another woman [but a woman is
prohibited from having sexual intercourse with anyone other than her husband], or
perhaps the child was borne by his amah. A man may acknowledge paternity of a
child that cannot be affiliated to his wife. But the HIanbalisargued that a woman may
have a child from semblance cohabitation (wat' shubhah)as long as the conception
takes place; otherwise there is a probability that the child is from the first husband.126
The Shdfi'is and the Hanballs hold that the acknowledgment of paternity by
husbands is accepted, because such acknowledgment can protect the foundling
(laqit) as being suspected of being a child of fornication. Therefore, affiliating a
foundling to a woman who has no husband is not established because it will bring
disgrace to her. The ShdfiT'son their second riwayat, however, hold that a married
woman who acknowledged a laqit, then her acknowledgment is not established
because her acknowledgment may result in the child being affiliated to the
husband without approval, or by affiliating a child which might result from zina or
wat' shubhah, in which case it may dishonour the husband. In contrast, if the
woman who makes the claim to such a child is unmarried, her acknowledgment is
established because there is no darar, i.e. dishonouring of the husband.127
The Shdfi'is view in their third report, which is also supported by (Sufyin) al-
Thawri, Abfi Thawr, quoted by al-Kawsaj from Ahmad Ibn Hanbal, however, hold
that if any woman who has brothers, or whose genealogy is known, claimed such a
foundling, her claim cannot be accepted, except if she has clear proof (bayyinah)
because logically if she has a family or her genealogy is known, she will have no fear
of giving birth. Ibn al-Mundhir agreed with the later view if the woman is able to
establish proof of delivery, otherwise her acknowledgment is not established.128
The HIanbalis argued that a married woman may acknowledge maternity of a
124
See Ibn Qudimah, al-MughnT, op. cit., Vol. V, pp. 694-695; cf. al-Hilli, Shardic al-Islam, Vol.
III, p. 287; al-Sarakhsi, al-Mabsait, Vol. X, p. 217.
125 Mohammed Kadri Pasha, Mohammedan Personal Law,
p. 93; cf. al-Sarakhsi, al-Mabsilt, Vol.
XXX, p. 70; cf. Vol. X, p. 217.
126 Ibn Qudamah, al-Mughni, op. cit., Vol. V, p. 694.
127 Ibid., p. 695.
128 Ibid., pp.
695--696.
foundling because the wife is [in the same position] as one of the parents, and the
status of a mother to be a father has allowed her to claim the child because
[hypothetically if the mother can prove such a foundling belongs to her she cannot
be prevented from claiming the child because the acknowledgment she claimed can
be accepted as the father's claim where the father may prove the child has been
borne through firash]. If the claimant is an amah her status is also like that of a free
woman, except that the Hanbalis insisted that only the genealogy of such a child is
established, not the child's bondage, as, if the foundling is claimed by a non-
Muslim (dhimmi), the child's religious belief is not necessarily similar to an infidel
(k fir).129
The Hanaffs, however, hold that when a husband of a woman acknowledges the
foundling is her child, the husband has approved that the foundling was hers; or
when the delivery of the child has been witnessed by a midwife (al-qabilah), or
when her acknowledgment has been testified by bayyinah even of a man and two
women, it is established.130Nevertheless, according to the Hanaffs, if a woman
who acknowledged the foundling has not married, in order to accept her
acknowledgment, the acknowledgment must be witnessed by two men.1'31
In principle, the Mdlikis held that any acknowledgment made by a claimant
[regardless of whether the acknowledgment was made by the finder of the
foundling] who was a male or a female, the acknowledgment was established. But if
the acknowledgment is by a female it is established that her husband can prove his
wife's acknowledgment is correct. Therefore, if her husband does not allow her to
take up the foundling, she cannot acknowledge such a child; she has to replace the
child where it was found, or replace it in a safer (ma'miin)place. But if she does not
want to replace it where it was found because she has the money to furnish the
upbringing of the child, she is allowed to do so, but if her husband then allowed
her to take up the foundling, the maintenance is incumbent on her husband, even
though his wife has money to support the child, because permission [to take up the
child] signifies that her husband is as the finder of the foundling.132The Ja'faris
insisted that any stranger (ajnabi) who acknowledged a foundling was his offspring,
then his acknowledgment, even it was made without proof (bayyinah), should be
accepted, especially if the claimant was its father, because the foundling's
genealogical relationship was considered not known, so the acknowledgment
made by the claimant should be put as a priority.133
Acknowledgment of paternity made by two claimants

If a foundling (laqit) is claimed by two persons or more, the provisions relating to
the acknowledgment of paternity to such a foundling are as follows.
129 Ibid., pp. 694-695.

130
Al-Haskafi, Sharh al-Durr al-Mukhtdr, Vol. I, p. 490.
131 Ibid., p. 491.
132
Muhammad al-Sawi, Bulghat al-Salik fi-Aqrab al-Masalik, Vol. II, pp. 326-327.
133
AI-HillI, Shariac al-Isldm, Vol. III, p. 287.
Firstly: according to the Shdfi'is, the acknowledgment of paternity made by two

claimants who have no proof (bayyinah) is established, whether such a foundling is
claimed by a Muslim, a non-Muslim, a free an, or a slave. This is because if a
Muslim and a non-Muslim concurrently claimed such a child, the acknowl-
edgment of both is established. But according to Abil Hanifah, acknowledgment of
paternity made by a Muslim is worthier than that of a non-Muslim (dhimmi), and
the acknowledgment of paternity made by a free man (hurr) is worthier than that of
a slave, because affiliating the foundling to a non-Muslim (dhimmi) or to a slave
may disgrace such a child. [Where the same rule is applied] a non-Muslim (dhimmI
) is prohibited from taking custody of such a child.134
In principle, al-Shdfi'i maintained two views when two persons claimed
something without any evidence, but where each one of them acknowledged the
item he found was his.
FIRSTLY.In order to determine such a belonging, both claimants should draw lots
(qur'ah). Sa'd b. al-Musayyib holds that particular cases must be judged through
drawing lots. It has been reported that the Prophet Muhammad (peace be upon
him), as narrated by 'Ali b. Abi Talib and Marwin and al-Awqas, have judged that
when two persons claimed something without any evidence, where both claimants
acknowledged the item found was their belonging, then they should draw lots.135
The winner of the lottery has to take an oath. All witnesses should provide
testimony that such a belonging belongs to the finder. Thus the item which he
made the claim to should be considered as his, and the claims made by other
claimants should not be entertained.
SECONDLY.In order to determine who is the owner of such a belonging, both

claimants are allowed to share. If the belonging is in the form of an item that can be
divided into two, such a belonging should be divided into halves between them, as
both of their proofs are similar.136
Ibn al-Qdsim al-Mdliki and Muhammad b. al-Mawdz stated that a woman was
delivered of a baby girl, and was in fear of being repudiated by her husband. She
discarded her newborn child near the door of a mosque, hoping that somebody
would take her up and support her. Obviously the husband forced the wife to pick
up the child. But, unfortunately, when the woman came to pick up the child, she
found another baby girl also abandoned beside her. She does not know whether the
child she took was hers. One of the two children was picked up by his wife, and due
to that, her husband claims the affiliation of this child. His acknowledgment of
paternity is not established, as it cannot be ascertained that the child took up by his
wife was really his child, despite the fact that it is hard to confirm the child's
identification. However, the Mdlikis, like
Sahnfin for example, hold the view that
the establishment of the affiliation of the child must be applied through
134 See Ibn Qudamah, al-Mughni, op. cit., Vol. V, p. 696.

135 Muhammad Idris al-ShAfici, al-Umm, Vol. VI, p. 245.
136
Ibid.
physiognomy (al-qiyafah). Thus the acknowledgment of paternity may depend on

the theory of physiognomy. The child must have the same features with his father
who is alive. Furthermore, the acknowledgment of paternity to a child may also
rely upon the resemblance with a child's father who was dead, but not buried. In
contrast, the acknowledgment of paternity is not established if the child has the
same features as one of the agnates ('asabah) of his father who has died and has not
been buried.137
The Hanballs maintained that any claimant reserves the right to acknowledge
the paternity of a foundling, irrespective of whether the claimant is a Muslim, a
non-Muslim (dhimmsi), a free man (hurr), or a slave ('abd). If the claim is made
without proof (bayyinah), the paternity of the foundling is established, except that
the Hanballs hold that the child cannot be considered as a dhimmi or a slave,138
even if the finder was a dhimmT,or a slave. This is because if the finder is a dhimmT,
the child whom he takes up is not necessarily also a dhimmt. The same rule applies
if the finder is a slave.
Secondly: If such a foundling is claimed by two persons and one of them has proof
of being the father of the child, his acknowledgment of paternity is established. If
both claimants have proof of being the father of the child, but the proofs are
conflicting, their acknowledgment of paternity is not established because the
contradicting proofs cannot be applied, except for property (mal), where such
property has to be divided between the claimants, or by drawing lots, which is
impossible to be applied in this context because the claim refers to the genealogy of
a child.139 This is because the acknowledgment of paternity without proof is
accepted more easily than a claim of acknowledgment of paternity with two proofs
from two persons conflicting with each other.
Thirdly: According to Anas, 'Atd', Yazid b. 'Abd al-Mdlik, al-Awz'i', al-Layth,

the Shdfi'is and Abfi Thawr, if a foundling is claimed by two persons and their
proofs contradict each other, the child's genealogy must be finalised by a
physiognomist.140Those are the view of Muslim scholars if the claimants are male.
But if the claimants are women, the HFanaffsopinion is as follows.
FIRSTLY. For two women who acknowledge a foundling and where one of the
claimants has proof that the foundling is hers, preference must be given to her.
However, if both women have proof that the foundling is their child, the foundling
is considered as their child.'141
137 Slih CAbdal-Samic al-Azhari, Jawdhir al-Aklil-Sharh Mukhtasar al-cAllamah Khaill, op. cit., p.
139.
138 Ibn Quda~ah, al-Mughni, Vol. V, p. 696.
139 Ibid.
140 Ibid.
141 Al-Haskafi, Sharh al-Durr al-Mukhtdr, Vol. I, p. 491; cf. al-Sarakhst, al-Mabsat, Vol. X, p. 217.
SECONDLY.If both women claim to have no proof that the foundling is their child,
at least if one of them can reveal a certain identification on the child's body, and if
her identification is correct, her acknowledgment is established, provided the other
claimant has no strong objection (yu'arid aqwa minh).142
The Ja'faris, however, maintain that if there are two claimants who acknowledge
such a foundling as their offspring, preference must be given to the one who has
proof. If both claimants have proof, drawing lots (al-qur'ah) has to be implemented
in order to ensure the father of the child. If both claimants have no proof and one
of the claimants is the finder [of the foundling], drawing lots also has to be done.
Therefore, the foundling cannot be handed to the finder, as the child's lineage
cannot be decided, except in matters relating to property (miil), as in hands there is
athar.143
The hold that when the paternity of a foundling is claimed by two
persons, other than
H.-anaffs the person who found him, the first claimant will have priority,
unless proof to the contrary is produced. In the case where both claims are made
simultaneously, where one of the claimants gives a description of a special mark on
the body of the child, and the same is found to be correct, the child's genealogical
relationship is established. But in the case of where both claimants are of different
religions, the Muslim will have priority over the other. If their claims are equally
proved to be right, and none of the claimants has priority over the other, both will
have the same rights over the foundling.144
CONCLUSION
This article has shown the means by which a child whose parents are not known
could acquire its genealogical relationship (nasab), through the doctrine of
or iqrclrbi al-nasab, as an alternative to adoption, which has been prohibited in
istilh.aq,
Islamic law. Rules governing istilhiiq have been outlined by the jurists in order to
protect a child's legitimacy, so as to ensure that the child has the right to claim
maintenance from its father. In cases where there are many claimants, priority is
given to those who have proof; otherwise, drawing lots is the only way to establish
a child's legitimacy.
142
Al-Haskafi, Sharh al-Durr al-Mukhtdr, Vol. I, p. 491.
143 Al-Hilli, Shardic al-Islam, Vol. III, p. 288.
144 AI-Zaylaci, Tabymnal--Haqd'iq, Vol. III, p. 298; cf. Mohammed Kadri Pasha, Mohammedan
Personal Law, p. 93.

Istil Āq and Its Role in Islamic Law

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Istilḥāq and Its Role in Islamic Law

* (Phd), International Islamic University, Malaysia (IIUM).

Arab Law Quarterly, [2003]

Dispute about paternity of 'Abd b. Zam'ah has been discussed by many

6 Al-CAsqalani, Fath al-Barz, Vol. XII, p. 33.

The second Tradition mentioned by Abu Da'wud as narrated by Ibn 'Abbds,

Al-Asma' I (d. 216AH/831CE) allowed a freed-man to commit adultery, if the

The above Tradition indicates that every admission of paternity was

iddi"al-walad instead of using the term q. According to him, acknowl-

Firstly: the acknowledgment which is made by the acknowledger with respect to

Secondly: the acknowledgment which is made with respect to relationships other

47 Baillie, A Digest of MoohummadanLaw, op. cit., pp. 406-408.

THE BASIS OF VALIDATING THE ACKNOWLEDGMENT

contracts concerning property and accepted liabilities (ma'dhin),59 or a slave held

Fifthly: The child's genealogical relationship resulting of "weakfirZish".This refers

RULES GOVERNING ISTILHAQ

duhu, 1966, Vol. III, 2nd edition, p. 550.

Who may acknowledge the child?

acknowledgment is confirmed by the parent.74Apart from this view, according to

The age of the parties

The child must be of unknown descent

The child must be legitimate

ACKNOWLEDGMENT OF PATERNITY ISTILHAQ AS

89 Shorter Encyclopaediain Islam, 1961, p. 569.

In Sahih Muslim 'Abdullah Ibn 'Umar reported:

95 Al-Qur'A, Surah al-Nofr (24):6.

Acknowledging paternity of illegitimate children

Acknowledgment of paternity (istil~iq) as regards the foundling (laqit)

Acknowledgmentof paternity made by one claimant

a Muslim or an infidel (dhimmi).'06According to the Mdlikis, a person who takes a

106 Al-Hilli, Sharaic al-Islam, Vol. III, p. 287.

"14 AI-Haskaft, Sharh al-Durr al-Mukhtdr, Vol. I, p. 491.

Acknowledgmentof paternity made by a woman

married woman acknowledge a foundling that her acknowledgment is established.124

Acknowledgment of paternity made by two claimants

129 Ibid., pp. 694-695.

Firstly: according to the Shdfi'is, the acknowledgment of paternity made by two

SECONDLY.In order to determine who is the owner of such a belonging, both

134 See Ibn Qudamah, al-Mughni, op. cit., Vol. V, p. 696.

physiognomy (al-qiyafah). Thus the acknowledgment of paternity may depend on

Thirdly: According to Anas, 'Atd', Yazid b. 'Abd al-Mdlik, al-Awz'i', al-Layth,

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