Custodial care of illegitimate child illegitimate child:

Question: Analyze the doctrine of child legitimacy under Islamic law, examining the rule 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.

Question: “If a child is born within the minimum and maximum periods of gestation, paternity is
attributed to the husband of the mother unless he refutes the child by the li’ān procedure.”
Discuss. (2020 OCT)

Answer: (859) words

The principle of Islamic law is that the child belongs in the marriage bed. A child is deemed
legitimate if born within the recognized gestation periods following the termination of a
marriage (due to death or divorce) and within six months of the marriage contract, as this is the
universally accepted minimum duration of gestation.

The four Sunni schools have varying definitions of the maximum duration of pregnancy. Legend
has it that Abu Hanifa encountered a woman whose fetus had been in utero for two years,
which led the Hanafis to determine that this is the typical duration of fetal development within
the maternal body. The Maliki, Shafi'i, and Hanbali schools of thought concur with extended
time periods. The duration of four years is generally recognized by the Shafi'is, Hanbalis, and
Maliki schools, although there is significant variation among schools. The judges from the
aforementioned schools introduced the notion of a "sleeping foetus," wherein the infant
remains in a dormant state throughout the entire gestation period, despite the acknowledged
limitations of foetal survival in utero. Shi'ah law limits gestation to ten lunar months, aligning
with contemporary medical perspectives.
If the infant is delivered within the gestational period, the husband of the mother is presumed
to be the biological father, unless he challenges paternity by invoking the li'an process, which
involves accusing the wife of infidelity. According to Islamic custom, a woman who announces
her pregnancy after the end of her marriage must remain in her iddah period until the birth of
the child. Under Sunni law, a woman who has completed a prolonged iddah period may be
eligible for alimony from her husband in the event of a divorce.

New legislation in the Middle East mandates that the iddah period should not exceed ten lunar
months, in order to eliminate medically implausible gestational lengths that were previously
recognized under the old law. Pakistan has amended its Evidence Act of 1872, which previously
presumed a child to be legitimate if born during a legal marriage or within 10 months of its
dissolution, deviating from the prevailing legal practice in the Muslim world. The revised
phrasing restores the previous Hanafi tenet that designates a child born within two years of a
divorce or annulment as legitimate.

In Hanafi law, if a marriage is arranged and the woman gives birth within six months of the
wedding date, the child is deemed to be the legitimate offspring of the husband, regardless of
whether they have had any prior contact. Shi'ah law differs from other legal traditions in that it
factors in the date of cohabitation when determining the gestation period. Egypt was the
pioneer in mandating evidence of sexual intercourse prior to the gestational period for
determining the commencement of pregnancy, as per Law No. 25 of 1929. Some Middle
Eastern countries now require proof of contact between a father and his alleged offspring
before considering paternity claims.

Islamic jurists enacted regulations to minimize the exclusion of children from an inheritance,
maintenance, and other benefits due to illegitimacy. Women were exempted from the harsh
punishments that were formerly imposed for allegations of zina. According to the laws of Sunni
and Shi'ah, a child cannot claim paternity if they were not born to their father through
legitimate means.
The Iranian Supreme Court deliberated on the obligations of a biological father towards an
illegitimate child in a legislative meeting. The justices held divergent views on this matter, with
some affirming the prevailing belief that there is no correlation between the two. Some
individuals adhere to Ayatollah Khomeini's belief that an illegitimate child remains the
biological offspring of their father, regardless of whether the father committed adultery or
engaged in fornication. As a result, the father is obligated to fulfill all custodial responsibilities
that he would have for a legitimate child, except for inheritance rights that are mutually
beneficial.

A man can legally adopt a child as his own if there is a minimum age difference of 12 years
between them, regardless of whether the child was born to a married woman or one observing
an iddah following a divorce.

Adoption is not recognized by Islamic law, despite its prevalence in Arabia before the
dissemination of Islam. Caring for abandoned or lost children is considered a commendable act
of benevolence. Unregistered adoption is prevalent in North African coastal cities. Following the
death of a brother, it was customary for a man to wed his sister-in-law and assume paternal
responsibility for her offspring. Tunisia has recently legalized adoption. The legal adoption of
children, regardless of their paternity status, was made possible by a law enacted on June 19,
1959. This assumes knowledge of the biological parents. The adopted child will acquire the
adoptive parents' surname and will be recognized as a legal member of the family.

Conclusion:
As a result, it is essential that we take into account the contemporary legal systems in various
parts of the Muslim world and give an initial reference to traditional ways of thinking about the
legitimacy of children. Because of different perspectives on how far along a pregnancy should
be before a baby is regarded as genuine, this is the case.