PROOF OF PATERNITY UNDER ISLAMIC LAW By *HAFSAT IYABO SAADU

INTRODUCTION
The is the of of companionship and procreation Thus,children. ForFirash, validin Islamauthorityriseprovisions Islamicjurists agreed that of Islamic must beThere relations byinguardian that aofmarriageessentials belongs valid marriage Lawthe Jurists marriageessence aof marriage wife, payment underlegitimacy Allpaternity all there minimumjurists further heldathe the or Law fordoesa not the wife tothat gives the to a todower butor is the envisaged of saying is commission of adultery by matrimonial be valid marriagethethe and recommended that in are marriage of proper Prophet it presence Islamic Law.of illicitis two witnesses. Thesethe affect the validity of marriage, but the husband.(PBUH) and of childrenof i.e. in Islamicdivorceaher.Underit Islamicestablishmentpaternity ofthe does not affectuncertain and.contract be established; such a childthe Law. commission wife husband condemnshould husband it.The Law, where a child is unknown, cannot is
affiliated to the mother and would be declared Walad Zina i.e. bastard The prophet (PBUH) was reported to have a grave offence, misplaces a childs legitimacy by relating its to someone who is not responsible whoits conception childs legitimacy by a woman his alienated herself from God, and has offended descentbliss of eternity. for obscures his has committed said denying who Likewise, a fatherdisgrace responsibility for its conception will be denied the inflicted upon God and himself universal paternity. It is a phenomenon, whichMention need be under Islamic Law. is not recognized made of the current popular slogan of Single parenthood, which cannot replace PROOF Under Islamic Law, Paternity may be established through: (i) (ii) Evidence. Marriage Acknowledgement, and

We shall discuss these serially. Paternity through Marriage

(i)

As earlier discussed, marriage is the right channel through which paternity may be established. The marriage in question must be valid and all essentials of marriage contract must be complied with. These are consent of the two parties, consent of the parents especially the father or his representative, payment of dower and the ceremony to take place between at least two witnesses

It is important to stress that after a couple might have complied with all the essentials of a valid marriage under Islamic Law, there must be consummation of such marriage. A childs paternity or affinity is not considered consummation of the marriage of by consideration of the period within which the child is born afterthrough physical resemblance but his parents. is six months. According to all Sunni Schools of Islamic Jurisprudence, the minimum period of gestation The carrying of the child to his weaning is a period of thirty months Here first verse that the childs carrying from thirty months which is second verse minimum period for a years.toTherefore the growth andsays two years i.e. 24 monthsand his weaning take get 6 months, while theconsidered thesays his weaning is two body complete by subtracting the out of its mothers womb. 30 months we its come In effect the law attributes to the husband the paternity of a child born to his wife not less than six months of marriage The Jurists unanimously tolerate right days less than six months no moreThe child bornFirash by virtuethat marriage contract with her and the possibilityand cohabitation period of matrimonial five exists become a in thepregnancy. Then the husband cannot bei.e. a freeborn, femalethe paternity, of citizen, has and possibility of resembles him or not. denied or deprived of whether the child All the to the of jurisprudence agreed that the real father should be deprived of the affiliation of the child to him until he establishes basis of his claimschoolschild. This has to the marriagein introductory part that any child born that Firash, i.e. authority belongs to the husband. Al-walad-lil-firash i.e. the child belongs been explainedbedthereiteratesproving this, Lian wouldmatrimonial by his legally married wife even through illicitcouple belongs to the husband who of an allegation of adultery factthe husband against to ato be or the denial Lian means to keep the paternity of the has the bed In the have man separate affair from each other as a child. In this case, the husband must establish the allegation wife introduced. of responsibility for or eyewitnesses of wifes pregnancy or result fails to proof it accordingly,by court would resort the Lian. He i.e.then subjectedproducing four times and the unimpeachable status. If he the curse of Allah be on him if he was telling lies. to of Zina, is adultery, by to take oath four the fifth time he would asked that

The wife may react oath allegation and the oath, if invokes the wrath takes its course. But if is telling the truth. take oath four times and the fifthto the should be that she solemnlyshe admits; the lawof Allah on herself if he she denies, she too is subjected to The consequence of such an oath is that the woman will be free of adultery punishment and the child remains legally fatherless. The child could inherit his mother but not his father nor is the father able to inherit out of the sons property if he was to die before the father.

The marriage between the couple is dissolved forever. If the husband the he is of i.e. 80 lashes. Imam Shafii agree to this, but Abuis to refrains from If the wife Oathrefusesto be punished by Hadd theqadhaf by Hadd ofdivorces or theand Hanbali Hanifa punished. taking detained or imprisoned until heshe accusation or elseelse 100 lashes. Both Imam Shafii and Hanbal agree, thenAbu is to or sayswife confess or she stoning if withdraws she be said he is to be too to swear but swears be punishedis to be detained or imprisoned until his marriage is consummated or he Hanifa she swears. too far awayAlso, before there can be Lian, there must not be sexual relation between the couple at all, or the sexual relation would have been or too short to deliver the child

of the paternity of the childThe Shafii in itsNote that mere resemblancethe the child and the father should not be used as a basis of determining jurists say that the child may remain and the Hanbali jurists say that mothers womb for two years child may remain in its mothers womb for four years. The Hanafi The Zahiri jurists together with Imam Jaafar Sadiq say that a baby remains in its mothers for nine months only None of those statements is supported by any authority. It is just a mere experience. based on theIbn Rushd, the great Maliki jurist affirms and preferistheperiod of nineAl-Hakam andcarries the the normal he adds that the rules the normal happening and the of AppealThis in views of Ibn months wife the Zahiri jurists and periods. years after are one year Speaking on the maximum period of betweenthat oncourtexceptional case the a situation where the and the wifesare pregnancy In that case, it means she termination of the marriage gestation, the placehusband and thenot deliver it at the normal period of nine months until sevenseven years. In her and birth of the baby terminates Iddah period. for after has been pregnant before the divorce took the and she she is relieved of the burden. Islamic Law, Iddah of a pregnant woman terminates when could The Court of Appeal held further that under Islamic law in any situation where paternity of a child is in dispute and where the mother has already contracted a second marriage, the essential thing to establish is how long is the period from the date of the second marriage and the delivery by her of the child.

will be said Thus, if a to the first husband unless he waives the paternity through mutual imprecation (Lian) of pregnancy the child delivered to belong woman gives birth to a child within a period that did not exceed the maximum period It is important to stress here that this happens, her to women who did becomes voidable, remarried woman birth to the child before the her Iddah;(ii) of the marriage. Ifthis rule is limitedsubsequent marriage not remarry or whobecause theand gavehas married while observing first six months Paternity through acknowledgement In the preceding lines it has been explained how paternity of children is established during wedlock or Iddah. But sometimes it happens that a marriage takes place between a man and Taiwo and all essentials of contract of marriage as stipulated by Islamic Law have been complied with. After this, the man now travels out and after some years come back, inquire about his wife and were told that she has traveled to Lagos. On getting there, the man mistook Kehinde to be his legal wife and she also pretends as if she is Taiwo. The two of them have affairs together and the man travel out again. After some years again come back and were told that his wife is pregnant and the wife (Taiwo) denied that she is not pregnant. But Kehinde now says she is pregnant for the man and he acknowledge it saying he mistook Kehinde for Taiwo because they resemble one another. In Islamic law, such acknowledgement or declaration is the strongest proof that the child is the legitimate child of that man. It means he was acting under a mistaken believe that Kehinde was his wife.

In Islamic Law, a marriage contracted innocently in error, like the above example is adjudged by all schools as void but punishment of Zina shall be waived.

However, she is a There are two rules of her guardian, and a virgin and witnesses. The divorced or be differedKehinde was aware and pretended not to know. obtained the consenthere. First, is Kehindethere must besecond, is she a dowry may widow? If and paid virgin and a minor she ought to have later But if Kehinde is a divorced or a widow, she has right to dispose of herself (in marriage) than her guardian. The conditions of acknowledgement are: (a) (b) the paternity of that child is unknown or uncertain and has not been established in anyone else; the ages of the acknowledger and the acknowledged are such that they may be father and son or daughter i.e. there should be a difference of about say 15 years of ages;

(c)

the child if it is at an age of understanding should confirm and agree with the acknowledgement; and

(d) the permanent or could have been she was not known of that childs mother impediments whether acknowledger temporary and thatthe lawful husband as a common prostitute.i.e. there was no marriage In Maliki Paternity through Evidence madh-hab such acknowledgement should be based on accurate facts and that which appear to be true(iii) It may happen child.a husband may be away it, then the wife may bring evidence to back his wife tells himIn such cases evidence this particular that If the husband doubts for a short period and when he comes prove her allegation. that she gave birth to of two females is sufficient CONCLUSION

In the foregoing study I have given an exposition of Proof of Paternity under Islamic Law. It has been shown clearly that Islamic Law as a legal system is capable of facing even modern challenges where matured girls became pregnant and the parents are aware of her relationship with the man involved and pretend not to know until she becomes pregnant.

They as parents have the right to separate them but they keep mute. It means they have given their implied consent and the entire community stands as witnesses to the relationship because they have been seen together for a very long time. The Dower may be paid later as earlier discussed in the paper.

Furthermore, the study has thrown more light on the proof of paternity in both the substantive and procedural aspect. The issues are, for purposes of refreshing our memories, the following; paternity through marriage, paternity through acknowledgement and paternity through evidence. Likewise, an attempt has been made to examine all the above issues within the meaning of the Holy Quran, Hadith and other subsidiary sources in line with views of various Schools of Islamic jurisprudence. At the end of it all, it is my considered opinion that Islamic Law serves all time and purpose.