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Illegitimate Child and Biological Father

Answered as per Hanafi Fiqh by CouncilofUlama.co.za

Q: A Muslim couple had a child before their marriage, but now they are married. He is the biological father of the baby. Is this child considered illegitimate child and will this child inherit the wealth of the father?

A. There is a famous Hadith narrated by Sayyiduna Abu Hurayra (Allah be pleased with him) that the Messenger of Allah (Allah bless him and give him peace) said: “The child will be attributed to the husband and the adulterer will receive the stone.” (Sahih Muslim, no: 1458)

The meaning of this Hadith is that, the right of paternity will always be for the person to whom the mother of the child is married. Hence, paternity will not be established with the adulterer. If the woman is unmarried, the child will only be attributed to her.

The Hadith says that the adulterer will receive the stone, meaning that he is liable to be stoned as punishment and not receive the child or (as some scholars have explained) the meaning of stone here is “deprivation”, meaning he will not have the right of paternity.

Moreover, the jurists mention that if one was to marry a woman whom one had impregnated and the child was to be born six months or more after marriage, then the child will be considered legitimate. However, if the child was born prior to six months elapsing, he/she will not be considered legitimate. (See: Radd al-Muhtar and other Fiqh references)

Thus, in light of the above, if the child is already born before marrying its mother, the child will, without doubt, be considered illegitimate; hence paternity will not be established with whom she had committed adultery, even if he was to marry her.

Therefore, this child born out of wedlock will not inherit from his/her mother’s husband. However, one may make a bequest up to one third of one’s wealth for the child, so that the child is not completely deprived from the wealth of his stepfather.

One should also remember that this should not deter the man from treating his stepchild as his own child. He should take care of the child, look after him and treat him as his own child. Thus, the above ruling does not mean he should treat the child as a stranger. Taking good care of the child will be greatly rewarded by Allah Most High.

And Allah knows best

This answer was collected from CouncilofUlama.co.za, which is operated under the supervision of Council of Ulama Eastern Cape, South Africa.

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