Examiners’ reports 2021

Examiners’ reports 2021

LA3028 Introduction to Islamic law – Zone B

Introduction
This year’s examination gave the students the option of answering four questions
from a list of eight questions covering different topics from the syllabus. The
questions were divided into Parts A and B and students were required to answer at
least one question from Part A and at least one question from Part B. All the
students followed the exam rubric well. The questions were a mixture of essay- and
problem-based questions that tested the understanding of the students on the
different topics covered in the syllabus. Generally, the overall performance was
good and students who had prepared well for the exams would have found the
examination a fair test of relevant topics covered in the module syllabus.
The scripts in the first-class range were generally of very high quality, focused on
the questions and demonstrated in-depth knowledge and understanding of each
question answered. The scripts in the upper and lower second-class range also
demonstrated appropriate level of knowledge and understanding but lacked the
depth of analysis of the scripts in the first-class range.
For some of the questions, students spent too much time discussing issues that
were within the scope of the subject generally but not specifically relevant to the
question being answered, which apparently then left them with less time to focus on
the specific relevant issues relating to the question. This relates to examination
skills rather than lack of knowledge and students would be well advised to learn to
‘answer the question’ rather than discussing generally around the subject. It could
also be that the students had prepared for the exams by memorising some
particular text for specific topics and could not adapt their knowledge in the context
of a question in the exam.

Comments on specific questions

PART A

Question 1
‘Confusion arises when the term shari'a is used uncritically to designate not
only the divine law in its pure principal form, but also its human subsidiary
sciences including fiqh.’ (Abd al Ati).
Discuss.
General remarks
This is a question of Islamic legal theory relating to the sources and methods of
Islamic law based on Chapters 1, 2, and 3 of the module guide and the relevant
readings therein and points from the mini lectures on the topic. A number of the

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students answered this question and demonstrated very good understanding of the
topic and engaged well with the quotation from Abd al Ati’s book The family
structure in Islam, which is one of the core textbooks for the module. The
differences in the depth of analysis was a matter of degree between the answer
scripts, which was reflected in the marks for this answer in the different scripts. The
grades ranged from firsts to upper seconds.
Law cases, reports and other references the examiners would expect you to use
Students should refer to relevant academic viewpoints on the related issues as well
as appropriate authorities from the Qur’an and Sunnah in addition to jurisprudential
opinions on the subject.
Common errors
There were no serious errors in answering this question, rather the degree of
analytical depth differed from paper to paper.
A good answer to this question would…
demonstrate sound understanding of the four ‘sources’ of Islamic law, namely, the
Qur’an, the Sunnah, Ijmā’ and Qiyās, with the first two representing the shari’ah and
the latter two based on fiqh. An excellent answer would distinguish between the
shari’ah and fiqh, explaining the meaning and effect of each one. It would discuss
why distinguishing between the shari’ah and fiqh is important for a proper
understanding of the nature of Islamic law. Literally, shari’ah means ‘path to be
followed’ or ‘right path’ and in the strict legal sense it refers to the corpus of the
revealed law as contained in textual provisions of the Qur’an and the Sunnah. On
the other hand, fiqh literally means ‘understanding’ and refers to the human
understanding of the revealed sources. Thus, shari’ah refers to the primary sources,
which are textually immutable, while fiqh refers to the juristic understanding derived
from the shari’ah. Essentially, the shari’ah as the source of Islamic law is divine in
nature and thus immutable, while fiqh, as the understanding, interpretation and
application of the shari’ah is a human product that may change according to time
and circumstances. This distinction provides the necessary jurisprudential
foundation for the evolution of Islamic law in response to the needs of time. Each of
the four would be very well analysed, with clear illustrations of how they relate to
one another. An excellent answer would further clarify why ijmā’ and qiyās are
better considered as ‘methods’ rather than ‘sources’ of Islamic law in the strict
sense.
Poor answers to this question…
There were no poor answers per se for this question in this cohort of papers. Rather
some papers were less detailed in analysis than the answers in the first-class
range.
Question 2
Compare and contrast ijtihād and taqlīd as two indispensable principles of
Islamic law.
General remarks
This is a question on Islamic legal theory based on Chapter 3 of the module guide
and the relevant readings listed therein and points from the mini lectures on the
topic. The question required students to demonstrate a sound understanding of the
two concepts of ijtihad and taqlid, and those who answered this question evidenced
different but appropriate levels of understanding of the topic. Most students
attempted this question and they all answered it well with varying degrees of
analytical depth and engagement.

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 Examiners’ reports 2021

Law cases, reports and other references the examiners would expect you to use
Students would be expected to refer to relevant academic viewpoints on the related
issues as well as appropriate authorities from the Qur’an and Sunnah as well as
jurisprudential opinions on the subject.
Common errors
There were no serious errors in answering this question, other than the degree of
analytical depth, which differed from paper to paper.
A good answer to this question would…
demonstrate sound understanding of the two concepts of ijtihad and taqlid under
Islamic legal theory. An excellent answer would define each of the two concepts.
On the one hand, ijtihad is an important tool of independent juristic reasoning
exercisable by a qualified mujtahid. Relevant Qur’anic verses and the hadith of
Mu’adh bn Jabal should be cited as authority for ijtihad. The different types of ijtihad
and classifications of mujtahid and their qualifications should be explained. The
concept of the closing of the gate of ijtihad should also be discussed. On the other
hand, taqlid is the opposite of ijtihad and exercisable by a person who cannot
perform ijtihad. An excellent answer would highlight that taqlid is not in itself an
undesirable practice and that it is a necessary methodology of Islamic law,
especially for lay persons who are not qualified to perform ijtihad and have to rely
on the ijtihad of qualified jurists who are required to perform ijtihad when necessary
from time to time.
Poor answers to this question…
There were no poor answers per se for this question in this cohort of papers.
Rather, some papers were less detailed in analysis than those answers in the first-
class range.
Student extract
Ijtihād and taqlid are two indispensable principles of Islamic law. These
principles are understood from being placed in contrast with one another.
However, the majority of the focus, especially in the modern era, is spent on
ijtihad. In fact, taqlid is often viewed in a negative light. That should not
always be the case. The following … will briefly review the importance of
these two principles by placing them in that contrast and state why they are
both indispensable.
Understanding Ijtihad
Al-Amidi defines ijtihād from the perspective of sparing no effort or time
through one’s quest to discover or interpret the true meaning of Shariah law.
Basically, a scholar should leave no stone unturned in their pursuit of legal
knowledge, reasoning, and understanding. Al-Shāfiʿī’s definition of ijtihād is
that of analogy and reflection. In this light ijtihad is not just about the effort of
one’s pursuit, but also about a person’s reflection on what Shariah law means
based on those reflections. As such, ijtihad is really only applicable in
instances where the primary sources of Islamic law are in doubt. If a law is
qat‘ī or definitive than ijtihad would not apply. There are four main instances
or levels of ijtihad. These include the al-ijtihad al-mutlaq al-mustaqil which are
the absolute and independent Ijtihad that was conudected [conducted] by the
four founders of the Sunni schools of law. Then there is al-ijtihad al-mutlaq al-
muntassab which is Ijtihad that is affiliated with schools of law such as those
by Abu Yusuf or Muhammad al-Shaybani in the Hanafi school. Then there is
al-ijtihad fi al-madhhab which is Ijtihad conducted by a school of law itself.
And finally, al-istinbat ft ba'dhilmassail faqat meaning the development of a
specific point or instance of law for one school. With that understanding, it
becomes clearer that ijtihad is typically reserved for very good or renowned

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 legal scholars called Mujtahids. To that end, Sunni law typical held the
position that Islamic legal scholarship / interpretation ended by the 10th
century due to the Mujtahids having clearly indicated any possible
interpretation of the law. This is knows [sic] as the ‘gates closing’ argument.
Nevertheless, modern scholars have began [sic] to move away from this idea
of the gates being closed. Modern instances of ijtihad legislation/rulings
included the Egyptian Law of Testamentary Dispositions of 1946, the
Supreme Court of Pakistan’s decision in Khurshid Bibi v Muhammed Amin
PLD 1967 SC 97, Md Hefzur Rahman v Shamsun Nahar Begum 15 BLD
(1995). Taking the Pakistani Supreme Court decision as an example, the
court developed a new interpretation of the khul to be able to grant its own
judicial khul. Ijtihad is important because it fills in the blanks when the primary
sources of law are not definitive or explicit enough. This also leads to the idea
of the Taqlid.
Understanding Taqlid (or Taqleed)
Many individuals define Taqlid as blinding following someone else. That can
be a literal translation of the word. However, that is not correct for legal
purposes/reasoning. Rather, Taqlid implies that a person is unable to extract
Islamic law from the primary sources all on their own due to deficiencies in
one’s own abilities. This does not mean that Taqlid implies a person is dumb
or inferior to another. Instead, Taqlid implies that some people are simply not
involved enough in/or do(es) not possess the requisite knowledge to make
informed decisions on legal meanings / interpretations. When this is the case
people can follow the person or people who do have these abilities. It is
important to understand that being, acting, or performing Taqlid is not a
requirement of the Islamic faith. In fact, if capable, people should pursue their
own scholarly understanding of legal reasonings on their own. People should
become their own form of Mujtahids. However, not everyone has that option
or ability. Thus, to perform ihtiyat (or to take caution) a person can/should
follow the guidance of another who can properly interpret legal
reasoning/meaning. The Qur’an does make Taqlid clear. In the Surah Al-
Anbiyah, Verse 7 it states:
‘So then ask the people of the reminder if you do not have any knowledge.’
In the Surah Al-Nahl, Verses 43 it also states:
‘And we did not send any Apostle before you (O’ Muhammad) except that
they too were but (mortal) men to whom We granted inspiration: if you realize
this not ask of those who possess the Message. (We sent them) with Clear
Signs and Books of prophecies; and We have sent down unto you (also) the
Message; that you may explain clearly to men what is sent for them so that
maybe they make ponder upon this.’ Here, the Qur’an indicates that people
should follow others if you do not have any knowledge yourself. Further, the
prophet and his rightful successors (The 12 A’immah) are placed in authority
above others to guide them with their knowledge. This is an essential idea of
the Taqlid. Even though it is not a requirement to follow, you must follow if
you are not able to do it on your own.
Why They Are Both Indispensable
Muslim people must believe and act on the fundamental and essential nature
of their faith. However, they are given the choice to either determine and
understand law with their own capabilities or to follow those who already
have. However, if a person does not have the capabilities to determine the

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meaning of laws on their own, then they must follow someone who can. This
is a requirement of the Muslim’s religious obligation to him/herself and family.
Comments on extract
This is a comprehensive and very well-articulated answer demonstrating excellent
understanding of the subject with evidence of familiarity with the relevant authorities
and case law on the topic. The only important authority omitted was the hadith of
Mua’z ibn Jabal, which is considered as the earliest Prophetic authority for the
recognition of the application of ijtihad from the time of the Prophet. This answer
was awarded a first-class mark.
Question 3
Discuss each of the following categorisations of the verses of the Qur’an,
including their respective legal usage, with relevant examples and
illustrations.
a) khāss;
b) āmm;
c) qat‘ī; and
d) dhannī.
General remarks
This question is based on Chapter 3 of the module guide and the relevant readings
listed therein and points from the mini lecture on the topic. It relates to the
categorisations of the verses of the Qur’an as the principal source of Islamic law. It
is a clear question, with each leg of it providing students an opportunity to
demonstrate their sound understanding of each of the categorisations. A number of
students attempted this question and did well with different levels of analytical depth
as is reflected in the grades awarded to each script for this answer.
Law cases, reports and other references the examiners would expect you to use
Students would be expected to refer to relevant academic viewpoints on the related
issues as well as appropriate authorities from the Qur’an and Sunnah in addition to
jurisprudential opinions on the subject.
Common errors
There were no serious errors in answering this question, other than the degree of
analytical depth, which differed from paper to paper.
A good answer to this question would…
start by explaining the nature the Qur’an as a divine revelation and main source of
Islamic law but that the text of the Qur’an must however be interpreted to derive law
from its provisions and, for consistency in interpretation, the classical jurists
categorised the verses in relation to their nature and rules of interpretation. It would
demonstrate sound understanding of the categorisation of the verses of the Qur’an
and explain the importance of the listed categories (khass, amm, qat’i, and dhanni),
as examples of the many categorisations that should be defined and fully
discussed, with relevant examples provided for each category. The khass relates to
the particular, amm to the general, qat’i to the definitive and dhanni to the
speculative. An excellent answer would explain the nature of each one of these and
the rules of interpretation relating to each one.
Poor answers to this question…
There were no poor answers per se for this question in this cohort of papers.
Rather, some papers were less detailed in analysis than those answers in the first-
class range.

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Question 4
Discuss each of the following categorisations of the Sunnah, including their
respective legal usage, with relevant examples and illustrations.
a) sahih;
b) da’īf;
c) matawātir; and
d) ahhād.
General remarks
This question is based on Chapter 3 of the module guide and the relevant readings
listed therein and points from the mini lecture on the topic. It relates to the
categorisations of the Sunnah as the second principal source of Islamic law. It is a
clear question, with each leg of it providing students an opportunity to demonstrate
their sound understanding of each of the categorisations. The couple of students
who attempted this question did well with different levels of analytical depth as is
reflected in the grades awarded to each script for this answer.
Law cases, reports and other references the examiners would expect you to use
Students would be expected to refer to relevant academic viewpoints on the related
issues as well as appropriate authorities from the Qur’an and Sunnah in addition to
jurisprudential opinions on the subject.
Common errors
There were no serious errors in answering this question.
A good answer to this question would…
demonstrate sound understanding of the Sunnah, its development as the second
principal source of Islamic law and the hadīth as its vehicle. An excellent answer
would analyse the importance of hadīth as the vehicle of the Sunnah and the
emergence of forged ahādith in the classical period of the development of Islamic
law. This consequently resulted in the debate about the authenticity of the Sunnah
and the classification of hadīth into the main categories of sahīh (sound) and da’īf
(weak) in relation to certainty of text (matn) and mutawātir (widespread) and ahhād
(solitary) in relation to chain of transmitters (isnād). Each of these categories with
then be fully discussed, explaining that this applies mostly under Sunni legal theory.
Poor answers to this question…
There were no poor answers per se for this question.
PART B

Question 5
Outline the requirements of consent for a valid marriage, including an
examination of child marriages under Islamic law, with reference to classical
Islamic jurisprudential views, relevant provisions of the modern Family Code
of any Muslim-majority state.
General remarks
This question is based on Chapter 6 of the module guide and the relevant readings
listed therein and points from the mini lecture on the topic. It relates to Islamic family
law with reference to the laws of marriage on consent and the issue of child
marriage. It is a clear question, providing students an opportunity to demonstrate
their sound understanding of the subject. A number of students attempted this
question and did well with different levels of analytical depth as is reflected in the
marks awarded to each script for this answer.

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 Examiners’ reports 2021

Law cases, reports and other references the examiners would expect you to use
Students would be expected to refer to relevant academic viewpoints on the related
issues as well as appropriate authorities from the Qur’an and Sunnah in addition to
jurisprudential opinions on the subject.
Common errors
There were no serious errors in answering this question, other than the degree of
analytical depth, which differed from paper to paper.
A good answer to this question would…
demonstrate a sound understanding of the laws of marriage under Islamic family
law. It would analyse the nature of consent as a pillar for the validity of marriage
with reference to relevant Qur’anic provisions, ahadith and the views of the jurists
under classical Islamic jurisprudence. The juristic differences under classical Islamic
jurisprudence should be explained. The permissibility of child marriages should also
be analysed in relation to consent, highlighting the view of the majority of jurists on
its permissibility and the view of minority jurists such as Ibn Shubrumah about its
non-permissibility, also with reference to relevant Qur’anic provisions and ahadith in
relation to the different views under classical Islamic jurisprudence. The reforms in
most Muslim-majority states on child marriages would be discussed such as the
current law in the family code of any Muslim-majority state, such as Morocco,
Jordan, Malaysia as was covered in the module.
Poor answers to this question…
There were no poor answers per se for this question in this cohort of papers.
Rather, some papers were less detailed in analysis than those answers in the first-
class range.
Question 6
Adam has accused Zahira of committing the crime of zina. With reference to
classical Islamic jurisprudence and the penal law of any Muslim-majority
state, discuss the following issues:
a) the proof required to establish the offence;
b) the punishment for the offence if proved;
c) the consequence of failure to prove the offence; and
d) if Adam were Zahira’s husband.
General remarks
This question is problem question based on Chapter 4 of the module guide and the
relevant readings listed therein and points from the mini lecture on the topic. It
relates generally to Islamic penal law with particular reference to the offence of zina
and the required proof for it under classical Islamic jurisprudence and the penal law
of any relevant Muslim-majority state. It is a clear question, with four main legs
relating to different aspects of the offence of zina.
Law cases, reports and other references the examiners would expect you to use
Students would be expected to refer to relevant academic viewpoints on the related
issues as well as appropriate authorities from the Qur’an and Sunnah in addition to
jurisprudential opinions on the subject. The case of Hazoor Buksh v Federation of
Pakistan is a relevant case to be mentioned in the analysis of part (b) of the
question.
Common errors
There were no serious errors in answering this question, other than the degree of
analytical depth, which differed from paper to paper.

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A good answer to this question would…
would demonstrate a sound understanding of Islamic penal law, with particular
reference to the offence of zina and the required proof for it, under classical Islamic
jurisprudence and the penal law of any Muslim-majority state, such as the Pakistan
Offence of Zina (Enforcement of Hudood) Ordinance (1979), the Brunei Syariah
Penal Code (2013) or any others. The listed issues could be addressed as follows:
a) The proof required to establish the offence of zina is the evidence of four
male witnesses who saw the couple physically involved in the sexual act.
The Qur’anic authority is Q24:4. An excellent answer would highlight that
the offence must have been committed wilfully by Zahira and would
therefore exclude victims of rape.
b) The punishment under classical Islamic law for zina, if the offence is
proved, is 100 lashes in case of fornication if the offender(s) is not married
– based on Q24:2 and is stoning in a case of adultery if the offender(s) is
married – based on the Sunnah. An excellent answer would discuss the
debate about the punishment of stoning and the dissenting view of minority
groups such as the mu’tazilah about stoning. The 1981 case of Hazoor
Buksh v Federation of Pakistan is a relevant case to be mentioned in that
regard.
c) Where Adam is unable to prove the offence of zina against Zahira, he will
himself be guilty of the offence of qadhf, which is punishable by 80 lashes
based on Q24:4.
d) If Adam were Zahira’s husband and could not provide the evidence of four
male witnesses to prove the offence of zina, he will resort to the process of
li’an based on Q24:6–9. An excellent answer would be expected to explain
the process of li’an clearly to demonstrate understanding.
Poor answers to this question…
There were no poor answers per se for this question in this cohort of papers.
Rather, some papers were less detailed in analysis than those answers in the first-
class range.
Student extract
(a) Even as far as hadd offences go, the standard of evidence required to
convict Zahira of zina is almost impossibly high (assuming this case is going
before a qadi, the only arbitrator authorized to impose hadd punishments).
Four male adult sane witnesses of the highest moral acumen (Surah 24:11-
13) need to have not only witnessed Zahira commit fornication, but have
seen it in the most intimate details; on the basis of some hadiths, they must
have seen an act analogous to a pencil going into a container or a bucket
going into a well. There are some qualifications here: if Adam is Shi’ite,
women’s testimony will be valid if there are also male witnesses (so one man
and six women, or two men and four women, will provide sufficient testimony
for a conviction, assuming they saw it in the graphic detail described). Book II
of the Iranian Penal Code (henceforth IPC) distinguishes between the
threshold of proof necessary for a conviction depending on what the
punishment will be. In general, article 74 states, the testimony of 4 just men
or 3 just men and 2 just women will suffice for a conviction, but article 75
qualifies that, if the punishment is merely flogging, ‘it can be proven by the
testimony of two just men and four just women.’ Although circumstantial
evidence is normally prohibited, the Malikis will allow an unmarried woman
giving birth to count as evidence of zina. If this is Zahira’s situation, she can
claim she was raped, but then she needs to give corroborating evidence of
this, e.g. that she screamed for help. However, if she claims that she was

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impregnated in her sleep, or through amorous but non-penetrative activity,

this can be accepted without corroboration. The confession of the accused is
also permissible as evidence in both shariah and the IPC, but it must be
repeated four times in court to be finally admissible. IPC article 68 qualifies
this, however: A fourfold confession will warrant the prescribed punishment,
but if Zahira confesses in court fewer than four times, ‘the punishment shall
be at the judge’s discretion.’
(b) The punishment will depend on different factors. If Zahira is unmarried,
she is liable for 100 lashes in shariah and according to article 88 of the IPC; if
she is married, she is to be stoned to death (IPC articles 82-83—although 83
clarifies that, if Zahira has committed zina with a minor, it is only punishable
by flogging, even if she is married), and, if she is an ‘old married adulteress’,
she is flogged, then stoned (article 84). Article 90 adds that, if this is her
fourth time being convicted of zina, she is to be put to death, even,
presumably, if she is unmarried. (However, articles 91-92 add that her
punishment is to be postponed if she is pregnant or breastfeeding, and article
93 says that flogging should be postponed if she is menstruating.) Article 100
states that she would need to be tied to a chair if she is going to be flogged,
and 102 says she will need to be buried up to her breast if she is stoned.
However, Shi'ites and a minority opinion in the Shafi'i and Hanbali school
would say that, if Zahira repents before the crime has been proved in court,
she cannot be punished for her crime. Iran being an officially Shi’ite country,
this is reflected in the IFC: She will not be punished, per article 81, if she
repents before confessing (I take this to also imply ‘before she is legally
convicted’). However, if she repents after confessing (ditto), ‘the punishment
for adultery shall apply.’ Though the question asks specifically about what
would happen if the fornication is ‘proved,’ it’s worth noting that, even if the
high standard of hadd proof is not met, strong circumstantial evidence (or
even strong evidence that is simply not strong enough for hadd standards)
can allow the qadi to apply ta’zir punishments, though these, of course,
cannot be harsher than the prescribed hadd ones.
(c) Adam will also be potentially guilty of the offence of qadf and will be liable
to suffer 80 lashes, per shariah and per article 140 of the IPC. Moreover, if he
is the only ‘just man’ who testifies, even if he has women who also testify to
the zina, he and those women are all potentially liable under article 76 of the
IPC (‘The testimony of women alone or in conjunction with the testimony of
only one just man shall not prove adultery but it shall constitute false
accusation which is a punishable act’). Article 145 will even punish Adam with
up to 74 lashes for simply insulting Zahira with an insinuation that she
committed zina, even if this is not a formal legal accusation.
(d) If Adam is her husband, one of two things will result. One is that, of
course, if Zahira is convicted, she will be stoned rather than flogged (or, in
Iran, both, if she is an ‘old’ adulteress, whatever precisely this means). If she
is not convicted, Adam may decide to invoke li’an, swearing five oaths
(including an invocation of God’s curse) that she is an adulteress despite the
failure of the court to prove it. This will result in the termination of the
marriage, either automatically (Maliki/Shafi’i/Shia) or by judicial decree
(Hanafi/Hanbali).
Comments on extract
This is an excellent answer that covers each leg of the question comprehensively.
This answer was awarded a first-class mark.

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Question 7
Discuss the concept of post-divorce consolatory gift (mut’ah talaq) under
Islamic law, examining its nature and who is entitled to it, with reference to
classical Islamic jurisprudential views, relevant provisions of the modern
Family Code of any Muslim-majority state.
General remarks
This question is based on Chapter 9 of the module guide and the relevant readings
listed therein and points from the mini lecture on the topic. It relates generally to the
rules regulating the dissolution of marriages under Islamic law, with particular
reference to the concept of post-divorce consolatory gift (mut’ah talaq). It is a clear
question that could be answered easily by any student who has prepared well for
the exams.
Law cases, reports and other references the examiners would expect you to use
Students would be expected to refer to relevant academic viewpoints on the related
issues as well as appropriate authorities from the Qur’an and Sunnah in addition to
jurisprudential opinions on the subject. Also, reference should be made to relevant
provisions of modern family law codes of Muslim-majority states.
Common errors
There were no serious errors in answering this question, other than the degree of
analytical depth, which differed from paper to paper.
A good answer to this question would…
demonstrate a sound understanding of the rules regulating dissolution of marriages
under Islamic law, with particular reference to post-divorce relief. It would analyse
the concept of mut’ah talaq under classical Islamic jurisprudence and relevant
provisions of the modern family code of any Muslim-majority state. The relevant
Qur’anic verses that serve as authority for the concept are Q2:236, Q2:241 and
Q33:49. An excellent answer would highlight that the classical jurists held different
views on these verses as to which divorcees were entitled to what and whether
mut’ah talaq was obligatory or merely recommended. Some modern Muslim-
majority states have made the mut’ah talaq obligatory, e.g. Jordan under Article 155
of the Jordan Personal Status Law (2010). Other relevant modern provisions are
Article 84 of the Morocco Family Code (2004) and Article 56 of the Malaysian
Islamic Family Act (1984).
Poor answers to this question…
There were no poor answers per se for this question in this cohort of papers.
Rather, some papers were less detailed in analysis than those answers in the first-
class range.
Question 8
Analyse the doctrine of child legitimacy under Islamic law, examining the
rules on the period of gestation, with reference to classical Islamic
jurisprudential views and relevant provisions of the modern Family Code of
any Muslim-majority state.
General remarks
This question is based on Chapter 10 of the module guide and the relevant
readings listed therein and points from the mini lecture on the topic. It relates
generally to the rules regulating child legitimacy under Islamic law. It is a clear
question that could be answered easily by any student who has prepared well for
the exams.

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Law cases, reports and other references the examiners would expect you to use
Students would be expected to refer to relevant academic viewpoints on the related
issues as well as appropriate authorities from the Qur’an and Sunnah in addition to
jurisprudential opinions on the subject. Also, reference should be made to relevant
provisions of modern family law codes of Muslim-majority states.
Common errors
There were no serious errors in answering this question, other than the degree of
analytical depth, which differed from paper to paper.
A good answer to this question would…
demonstrate a sound understanding of the rules of Islamic law on child legitimacy.
An excellent answer would explain that the starting point in Islamic law is the
principle that ‘the child belongs to the marriage bed’, so a child is presumed
legitimate if born within a particular time frame in the marriage called the gestation
period. Students would be expected to provide a clear analysis of the rules on
gestation period, explaining the minimum and maximum periods of gestation for the
legitimacy of a child and the juristic differences in that regard under classical Islamic
jurisprudence and reference to relevant Qur’anic provisions and ahadith in that
regard. Relevant provisions in the Family Code of any Muslim-majority state must
also be referred to as an example of current legislation on the subject.
Poor answers to this question…
There were no poor answers per se for this question in this cohort of papers.
Rather, some papers were less detailed in analysis than those answers in the first-
class range.
Student extract
Children are assumed to be legitimate if they are born six months after the
marriage has been contracted. This has been accepted by all schools and
sect as the minimum period of gestation and after the marriage is terminated
either by death or divorce. Of course there are different views in terms of
interpreting the maximum period of gestation.
Looking at this Sunni schools, The hanafis the gestation period is 2 years
because he knew of the fetus that remained in the mother's womb for 2
years! Malikis, shafi and Hanbali accept longer periods but the majority is 4
years for hanbali shafi and for malikis is 5 years. Shia the maximum of
gestation is 10 lunar months. The child is born within the minimum or the
maximum period of gestation paternity is given to the husband of the mother
unless he refuses the child by the lian procedure (accusing the wife of
adultery). In traditional law women who claimed themselves to be pregnant
following the dissolution of their marriage remain in the iddah (waiting period
until she can remarry) until the child is delivered. Sunni schools claim that the
iddah is for a considered time. If the marriage was dissolved by divorce the
wife would be entitled to maintenance from the husband. In the Middle East
the maximum length of the iddah was approximately 10 lunar months; this
was to ensure the medically impossible of the gestation recognized by the
traditional law no longer applied. In Pakistan, Evidence Act 1972 children
were assumed legitimate if born during the valid marriage or within 10
months of its termination but amendments were made and traditional hanafi
laws were once again applied stating that children born within two years of
the termination of her marriage will be recognized as legitimate. If the
marriage is conducted where both parties are not physically present and if
the woman gives birth after six months has passed from the date of the
marriage the child will be regarded as legitimate and this has been followed
by Hanafis.

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 Other schools calculate the gestation only from the date when the parties are
physically present with each other. Shias calculate from the date of actual
consummation of the marriage.
The first country to ever legislate on this matter was Egypt where they also
believed gestation should run from the date from when the parties had
access to each other this could be proven (law no. 25 of 1929).This then led
other Middle Eastern countries to accept that no claims of paternity could be
made if there is no proof of access to the parties. Jewish had introduced
these laws from preventing child's to be declared illegitimate and hence they
were denied rights of inheritance maintenance and so forth. And this will also
serve to protect women from chargers of Zina. We would assume that if the
child is illegitimate than the father has no duty to look after the child but the
supreme Court in Iran follow the opinion of Ayatollah Khomeini, where an
illegitimate child was the child the biological father he must accordingly fulfill
all the parental duties which we would own to illegitimate child except there
would be no right of inheritance.
Comments on extract
This was a very good answer to the question demonstrating very good
understanding of the different jurisprudential views on the subject. This answer was
awarded a first-class mark.

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