Sharʿī Ruling on Child Maintenance Without Liʿān and Reconciliation of Hadiths
Source: Aḥkām wa Masāʾil, Masāʾil-e-Ṭalāq, Volume 1, Page 334
❀ Explanation of the Question:
A woman received three valid divorces (ṭalāq baṭṭah) from her husband. After the divorce, she left with her two children who had been born upon her husband’s bed. Later, when the ex-husband demanded custody of the children in court, the woman submitted a written statement claiming that this man was not the real father, but the illegitimate father of the children.
Now the questions are:
✿ Does Sharīʿah allow the woman to claim maintenance for the children from that man?
✿ The man also accepted the woman’s claim and said: “If she says they are not mine, I also withdraw from them.”
✿ In this case, is the woman entitled to receive the children’s maintenance according to Sharīʿah?
✿ How can the apparent contradiction between two related ḥadīths be reconciled?
❀ Relevant Aḥādīth
➊ Ḥadīth 1:
«اَلْوَلَدُ لِلْفِرَاشِ وَلِلْعَاهِرِ الْحَجَرُ»
(Mishkāt, Kitāb al-Nikāḥ, Bāb al-Liʿān)
"The child belongs to the [husband’s] bed, and for the adulterer is only the stone (i.e. nothing)."
➋ Ḥadīth 2 (Ḥadīth of Liʿān):
«وَأَلْحَقَ الْوَلَدَ بِأُمِّهِ»
(Muttafaqun ʿalayh, Mishkāt, Bāb al-Liʿān, al-Faṣl al-Awwal)
"And the child was attributed to the mother."
❀ Answer
Al-ḥamdu lillāh, waṣ-ṣalātu was-salāmu ʿalā Rasūlillāh, ammā baʿd!
✿ Understanding the Two Aḥādīth
The first ḥadīth — «اَلْوَلَدُ لِلْفِرَاشِ» — establishes a general principle that a child is attributed to the husband whose bed the child was born upon. This principle also encompasses the case of walad al-mulāʿanah (child of liʿān).
The second ḥadīth — «وَأَلْحَقَ الْوَلَدَ بِأُمِّهِ» — is specific to the case of liʿān.
According to the principle of Uṣūl al-Fiqh:
«وَالْخَاصُ لاَ يُعَارِضُ الْعَامَ بَلْ يُبْنَی الْعَامُ عَلَی الْخَاص»
"The specific does not contradict the general; rather, the general is applied in accordance with the specific."
Hence, when a particular situation of liʿān arises, the special ruling of attributing the child to the mother is applied.
✿ Sharʿī Position in the Present Case
The situation mentioned is not a case of liʿān.
Liʿān occurs only when the husband accuses his wife of adultery and then both swear oaths in the court under Sharʿī procedure, after which the child is disassociated from the husband. This formal act is what is recognized in Sharīʿah as liʿān.
In the current case:
✿ The woman submitted a written statement that the children are not her ex-husband’s.
✿ The man accepted this claim and renounced the children.
But this is not considered liʿān, as it does not fulfill the prescribed Sharʿī method and conditions.
✿ Final Ruling
◈ Since the children were born upon the husband’s bed, and no valid liʿān has taken place,
◈ According to the ḥadīth «اَلْوَلَدُ لِلْفِرَاشِ», the children are attributed to the husband,
◈ And he is legally responsible for their maintenance (nafaqah).
The woman’s denial and the man’s acceptance of that denial cannot substitute for liʿān. In Sharīʿah, only the prescribed procedure and evidences are authoritative.
ھذا ما عندي والله أعلم بالصواب
