LEGITIMACY

Waladu ʾl-ḥalāl ( ولد الحلال‎ ), “a legitimate child”; waladu ʾz-zināʾ ( ولد الزناء‎ ), “an illegitimate child.” The Muḥammadan law, unlike the law of England, makes legitimacy depend, not merely upon the fact of the child being born in “lawful wedlock,” but also conceived after lawful marriage. According to the Sunnīs and Shīʿahs, and according to the teaching of the Qurʾān itself, the shortest period of gestation recognised by law is six months , and consequently a child born any time after six months from the date of marriage has a claim to legitimacy. Amongst the Sunnīs, a simple denial of the paternity of the child so born would not take away its status of legitimacy. But the Shīʿahs hold that if a man get a woman with child and then marry her, and she give birth to the child within six months after marriage, legitimacy is not established. As to the longest period of pregnancy, there are some strange rulings in Muslim law. The Shīʿahs , upon the basis of a decision pronounced by ʿAlī, recognise ten lunar months as the longest period of gestation, and this is now regarded as the longest legal period by both Shīʿahs and Sunnīs. But Abū Ḥanīfah and his two disciples, upon the authority of a tradition reported by ʿĀyishah, regard two years as the longest period of gestation, and the Imām ash-Shāfiʿī extended it to four, and the Imām Mālik to five and even seven years! It is said these Sunnī doctors based their opinions on the legendary birth of Zuhak Tāzi and others, who were born, so it is related, in the fourth year of conception! But Muslim divines say that the old jurisconsults of the Sunnī school were actuated by a sentiment of humanity, and not by any indifference as to the laws of nature, their chief desire being to prevent an abuse of the provisions of the law regarding divorce and the disavowal of children. The general consensus of Muslim doctors points to ten months as the longest period of pregnancy which can be recognised by any court of justice. [Under the old Roman law, it was ten months. In the Code Napoleon , article 312, it is three hundred days. Under the Jewish law, the husband had the absolute right of disavowal. See Code Rabbin i que , vol. ii. p. 63.] The Muḥammadan law, like the English law, does not recognise the legitimation of antenuptial children. Whereas, according to French and Scotch law, such children are legitimated by the subsequent marriage of the parents. In Sunnī law, an invalid marriage does not affect the legitimacy of children born from it . Nor does it in Shīʿah law; but the Shīʿah law demands proof that such a marriage was a bona fide one, whilst the Ḥanafī code is not strict on this point. In the case of a divorce by liʿān [ LIʿAN ], the waladu ʾl-mulāʿanah , or “child of imprecation,” is cut off from his right of inheritance from his father. (See Syud Ameer Ali’s Personal Law of Muhammadans , p. 160; Fatāwā-i-ʿAlamgīrī , p. 210; Sharāʾiʿu ʾl-Islām , p. 301.) [ PARENTAGE .]