By Imam Ridwan Jamiu, PhD
Section 42 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides, ‘No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.’
In Mgbodu v Mgbodu, the Court of Appeal held that a child born out of wedlock must not be prevented from partaking in the sharing of his deceased father’s estate. His Lordship, Bolaji-Yusuff, JCA at page 439 paragraphs D-F held thus:
It has long been established that in this land, Nigeria, once a father acknowledges the paternity of a child whether born in or out of wedlock, the child is regarded as a legitimate child and is entitled to share in the estate of his/her father…This custom has now received a constitutional approval first through section 39 of the constitution of the Federal Republic of Nigeria, 1979 and now through section 42 of the 1999 Constitution (as amended) which provides that no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.’
The Supreme Court had previously established this in the popular Salubi’s case.
The above thus establishes that the Nigerian law now recognizes as legitimate the children born out of wedlock provided that their paternity was acknowledged by their putative father.
In the Sharῑ῾ah (Islamic law), paternity is generally determined by marriage. Every child born in a regular marriage belongs to the husband.
According to many scholars however, a child born out of wedlock is not qualified to inherit from the estate of the partner of his/her mother in the act of Zina and the man too is barred from sharing in the estate of the product of his illegal association with a woman. However, the mother and the child are free to inherit each other.
Ibn Qudᾱmah said: “The scholars were unanimously agreed that if a child is born to one man’s wife, and another man claims it is his child, the child is not to be attributed to the latter. The difference of opinion arises when a child is born outside of marriage.” If the woman is not married, and she has a child as a result of zina, and the zaani (adulterer, man who committed zina) claims it is his child, should the child be attributed to him or not? The majority of scholars are of the view that the child should not be attributed to him.
It was narrated from al-Hasan, Ibn Sireen, ‘Urwah, al-Nakha’i, Ishaaq and Sulaymaan ibn Yassaar that the child should be attributed to him. This was also the view favoured by Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him). Ibn Qudᾱmah also narrated this view from Abu Haneefah who said, ‘If a man commits zina with a woman and she gets pregnant from him, I do not see anything wrong with him marrying her even though she is pregnant, so as to conceal her (sin), and the child will be his child” (al-Mughni, 9/122).
Shaykh al-Islam (Ibn Taymiyah) said: There are also two views among the scholars concerning the zaani claiming the child as his if the woman is not married. The Prophet (peace and blessings of Allaah be upon him) said: ‘The child is to be attributed to the husband and the adulterer deserves nothing.’ So, he said that the child belongs to the husband, not the zaani. But if the woman is not married then this Hadῑth is not applicable. ‘Umar attributed children born in the jaahiliyyah to their fathers, but this is not the place to discuss this issue in detail.’ Al-Fataawa al-Kubra, 3/178, Majmu al-Fatawa, 32:113.
Naturally, every child must have a mother and a father. Allah says; “None can be their mother except those who gave them birth…” (Q58/2). Ibn al-Qayyim has posited, ‘If, according to Muslim jurists, the child born out of wedlock will be attributed to his mother and can inherit each other, why should he not be attributed to the father while the child was created from the sexual discharge of both of them and both of them claim that the child is from them and no one else claims the child?’ (Zᾱd al-Ma’ᾱd,5:374).
There is no authentic text that bars such acknowledgement or inheritance.
For its socio-economic significance, Islamic law goes further to emphasize that every child must have a father to whom he will be legally related and on whose shoulder his maintenance and upbringing rest.
Naturally, every child must also have a father. The story in the Hadith of the child who spoke in the cradle identifying a shepherd as his father who impregnated the prostitute could buttress this. A man on whom the paternity of a child revolves is one upon whom the maintenance of a child (male or female) legally revolves. The child bears his name. They can inherit each other and has full right of a child unless such is vitiated by other legal reason.
The implication of the above is that in Islamic law, there is no verse of the Qur’an or authentic Hadῑth or Ijmᾱ’ that prohibits a child born out of wedlock from inheritance, provided that he is acknowledged by the putative father and the woman gave birth to the child when there is no subsistence of marriage between her and another man. The effect of this is that the view that the child born out of wedlock is entitled to inheritance of his father who acknowledges his paternity is stronger and preponderant. It is in tandem with natural justice and preserves the fundamental human right of the child. Therefore, the Nigerian legitimation law and Section 42(2) of the Constitution may not have violated the Sharῑ῾ah.
The matter is a contentious one among the Muslim jurists for which one can choose the school of thought that is most convincing. It is a subject-matter of Ijtihād –independent juristic reasoning, not Ijma’ – consensus, and thus neither of the two opinions can be said to absolutely represent the Sharῑ῾ah viewpoint. But the closer to the Islamic law spirit has been defended. Allah knows best.
Yet, scholars were unanimously agreed that if a child is born to one man’s wife, and another man claims it is his child, the child is not to be attributed to the latter in all circumstances unless the lawful husband denies paternity to such a child through the process of Islamic law known as Li’ᾱn -mutual imprecation (Surah al-Nur,24:6-9). DNA test is not even admissible to prove paternity where regular marriage subsists.
The above is not meant however to trivialize the offence of adultery or the danger of promiscuity, it is rather meant to view the matter from the legal lens in order to determine the legal consequences of its occurrence.
Acknowledgment of such a child by a man is an unequivocal admission of sin by him and his partner. Such admission establishes the offence of Zina which is punishable where Sharῑ῾ah is the state law. Else, such partners are asked to repent to Allah and we rest the matter with Allah.
Allah says, “And do not come near adultery. It is immoral, and an evil way.” Surah al-Isra, 17:32
“The adulteress and the adulterer—whip each one of them a hundred lashes, and let no pity towards them overcome you regarding Allah’s Law, if you believe in Allah and the Last Day. And let a group of believers witness their punishment.” Surah Al-Nur,24:2
There is a consensus of all Islamic authorities that any married person convicted of adultery with another married person is guilty of an offence punishable with death where Sharῑ῾ah is the state law. (Sahih al-Bukhari, Hadῑth 6815).
Those who are cohabiting without former ‘Aqd Nikᾱh (contract of marriage) should therefore seek Allah’s forgiveness and right the wrong by seeking the former consent of the woman’s guardian in the presence of at least two witnesses and by paying the dowry in order to legalise their relationship.
Imam Ridwan Jamiu, PhD, is the Chief Imam of Lekki Central Mosque, Lagos. Email: ridone1424@gmail.com
