#1107: On Illegal Pregnancy And Inheritance Rights Of The Child

Assalamu Alaykum warahmatullahi wabarakatuh sir. How is family and everything. Please I have a question.

If a woman is married but has issues with her husband but has not legally divorce her husband due to physical abuse, but left the house and finally meet another man …
Slept with this man and was pregnant for him…
Before giving birth she was able to divorce her legal husband….with this new man concept.
Now the question is,
1) Is this zina?
2) For both the woman and the new man, how serious is there sin?
3) Is this child a bastard?
4) can this child inherited from his father and claim to be part of the father family?

Please your usual detailed explanation would be highly appreciated.

Jazakumullahu khaira

ANSWER:

Wa Alaykum Salam Warahmatullah Wabarakaatuh

Alhamdulillah. The family is fine. We ASK Allah to illumine our homes with the Luminance of His Message and the Guidance of His Din, amin

As for your question, then know, may Allah be pleased with me and you, that the question you have asked is a combination of 3 matters.

The first, is the leaving of the House by this woman permissible in the Shar’iah in the first place?

The Fuqahaa of Islam are at an agreement that it is not permissible for a wife to exit the home of her husband for any reason except with his permission. In the Hadith that was recorded by Imam Al-Bukhari the Rasul salallahu alayhi wasallam said:

إذا استأذنكم نساؤكم بالليل إلى المسجد فأذنوا لهن

“If your women seek your permission to go out at night to the Masjid, then permit them”

Of the rulings derived in this Hadith is the Obligation of seeking the Permission of the Husband before leaving the home for if permission is sought for exiting for the purpose of Ibaadah and Knowledge Seeking, then in more must be said of other than that of the things that women do outside homes. Why then will a woman go out without the permission of her husband?

Ibn Hajar mentioned this in Fat’hu al-Baari:

“If it is known that it is not permissible for a woman to leave her home without the permission of her husband, then are there conditions where there is an exemption in this Ruling?

Yes but there are a few. Ibn Hajar Al-Haytami rahimahullah mentioned them in the book Az-Zawaajir ‘An Iqtiraafi Al-Kabaa’ir. He said:

“Except that the house is getting destroyed and she fears for herself death… Or she fears for her life or her wealth like it is apparent with a Thief or a Transgressor encroaching into the home. Or she goes out to a Qaadi to seek redress for a matter that places her in severe duress, or to seek a knowledge or response to a Question about which her husband has not granted her an alternative”

These are example situations where a woman can exit the home without his permission. But these are life threatening situation, so let that be known. As for physical abuse, then of course this is life threatening if it’s persistent and it is a genuine ground to seek for divorce no doubt. But it is not permissible for her to exit the home and remain away for a time longer than required to get a divorce from a Qaadi or by intercession and intermediaries. This is because provided she isn’t divorced, she remains his wife upon whom his command and instructions are confirmed. She therefore remains in the state of sin for the extra amount of time she spends outside the home exceeding the period required to secure a legal divorce.

Then let it be known, may Allah grant us guidance, that it is not permissible for a woman to be alone and by herself. If she is not under the guardianship of her husband then she must be under the guardianship of her Parents or any of the Responsible and Respectable Men Relative Awliyaa of hers such as her uncles and brothers.

The Second, in Whether having intercourse with another man while she is away from her husband is regarded as Zina.

There is no doubt that this is Adultery the punishment of which is Stoning to Death, and we seek refuge in Allah. This is because she engaged with this man out of wedlock while she is the wife of another man. There is no excuse for this woman and she must hasten to repenting to Allah and seeking His forgiveness Day and Night for her sin in this regard is complicated and of the worst of sins that a woman can commit.

The third, whether the Child that comes from this pregnancy can be attributed to the man who is responsible for the Pregnancy and whether he may inherit him

Know, may Allah illumine my heart and yours that it is not permissible for them both to marry unless two Conditions are met:

The first, that they both repent to Allah immediately and sincerely promising not to return to Zina.

The second, that she waits until she delivers of the baby. This is the position held by Maalik and Ahmad. Whereas Abu Hanifah and Ash-Shaafi’i hold that she does not have to wait for the birth provided the man who wants to marry her is the man responsible for the Pregnancy. And though this marriage has been conducted, the child is still a child of Zinaa.

The position of the majority of the Fuqahaa is that this child must not be attributed to the man based on this and the child must not inherit him because the Rasul salallahu alayhi wasallam has said:

أَيُّمَا رَجُلٍ عَاهَرَ بِحُرَّةٍ أَوْ أَمَةٍ فَالْوَلَدُ وَلَدُ زِنَا لَا يَرِثُ وَلَا يُورَثُ

“Any man who commits intercourse illegally with a free or slave woman then the child from this is a Bastard that cannot inherit him not he inherit him”

The Hadith is sound. As was recorded by At-Tirmidhi who said:

“And this is implemented verbatim by the People of Knowledge that the Bastard does not inherit from his father”

And they mentioned that such a child is only attributed to his mother and may only inherit from her. As mentioned this is the majority position.

Whereas there exist an opinion among the Fuqahaa that the child may be attributed to the father provided the two fornicators are married and there is no debate about the person of the father.

This later position is the one upheld by Hasan Al-Basri, Is’haaq Ibn Raahawayh, Urwah Ibn Az-Zubayr, Sulayman bn Al-Yassaar, Muhammad bn Sirin, and a Narration from Abu Hanifah rahimahumullaah.

Of the Later Scholars that strenghtened this position is Shaykhu Al-Islam Ibn Taymiyyah and Ibn Al-Qayyim rahimahumullaah.

It is mentioned that the Children of Jaahiliyyah, due to the prevalence of Zinaa, were attributed by Umar, during his Caliphate to whosoever claimed them of the fathers. And there is similarity of this scenario to the scenario that we face today of the Prevalence of Zinaa, and refuge is sought from Allah.

Bottom line here however is that this woman must repent to Allah and seek His forgiveness for she has Indeed trampled numerous restrictions placed by Allah.

We ask Allah for Tawbah and Tawfiq, amin. Barakallahu fikum. Jazakumullahu Khayran

📚 IslāmNode