Excerpt from “Islāmī Qānūn-e-Wirāthat” by Maulānā Abū Nuʿmān Bashīr Ahmad
Ḥaml (the unborn child) refers to a child conceived and still in the mother’s womb.
The minimum period in which a child can be born alive is six months, as established through Qur’ānic reasoning.
It is narrated that a man married a woman who gave birth six months later. The matter was brought before ʿUthmān ibn ʿAffān رضي الله عنه, who ordered that she be punished by stoning.
However, ʿAlī ibn Abī Ṭālib رضي الله عنه said:
“If she argues with you based on the Book of Allah, she will prevail, for Allah says:
﴿وَحَمْلُهُ وَفِصَالُهُ ثَلَاثُونَ شَهْرًا﴾
‘And his bearing and weaning are thirty months.’
(al-Aḥqāf 46:15)
And in another verse Allah says:
﴿وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلَادَهُنَّ حَوْلَيْنِ كَامِلَيْنِ﴾
‘Mothers shall suckle their children for two complete years for those who wish to complete the term of suckling.’
(al-Baqarah 2:233)
When two years of suckling are subtracted from thirty months, six months remain for gestation.”
Hearing this, ʿUthmān رضي الله عنه retracted his ruling, and the lineage of the child was confirmed to the husband.
(al-Muwaṭṭaʾ of Imām Mālik, Kitāb al-Ḥudūd, 2/348, Ḥadīth: 1586; al-Sunan al-Kubrā by al-Bayhaqī, 7/442)
Scholars have differed regarding the maximum period of gestation:
Since the unborn child cannot be seen, scholars have differed regarding the number to assume:
Some hold it to be one, others two, and some even three or four.
Note: Since Islamic rulings are based on customary norms, and generally only one child is born at a time, this is considered the strongest (rājiḥ) opinion.
If more than one child is eventually born, their additional shares will be collected from the other heirs after birth.
If the other heirs are unwilling to delay the distribution of the estate until the child’s birth, then:
This is done by calculating the inheritance twice — once assuming the unborn child is male, and once assuming female — and reserving the greater of the two shares for the unborn.
If a man dies leaving a pregnant wife, a daughter, a mother, and a father, then:
① Existence of the pregnancy at the time of the deceased’s death, even if only in the form of a fertilized egg.
② The child must be born alive, even if only for a brief moment.
The Prophet ﷺ said:
لا يرث الصبي حتى يستهل صارخا وقال إستهلاله أن يبكي أو يصيح أو يعطس
“A child does not inherit until he lets out a cry; and his crying, wailing, or sneezing is the sign of that cry.”
(Sunan Ibn Mājah, al-Farā’iḍ, Bāb Idhā Istahalla al-Mawlūd Waritha, Ḥadīth: 2751)
❖ Definition
Ḥaml (the unborn child) refers to a child conceived and still in the mother’s womb.
❖ Duration of Pregnancy
The minimum period in which a child can be born alive is six months, as established through Qur’ānic reasoning.
It is narrated that a man married a woman who gave birth six months later. The matter was brought before ʿUthmān ibn ʿAffān رضي الله عنه, who ordered that she be punished by stoning.
However, ʿAlī ibn Abī Ṭālib رضي الله عنه said:
“If she argues with you based on the Book of Allah, she will prevail, for Allah says:
﴿وَحَمْلُهُ وَفِصَالُهُ ثَلَاثُونَ شَهْرًا﴾
‘And his bearing and weaning are thirty months.’
(al-Aḥqāf 46:15)
And in another verse Allah says:
﴿وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلَادَهُنَّ حَوْلَيْنِ كَامِلَيْنِ﴾
‘Mothers shall suckle their children for two complete years for those who wish to complete the term of suckling.’
(al-Baqarah 2:233)
When two years of suckling are subtracted from thirty months, six months remain for gestation.”
Hearing this, ʿUthmān رضي الله عنه retracted his ruling, and the lineage of the child was confirmed to the husband.
(al-Muwaṭṭaʾ of Imām Mālik, Kitāb al-Ḥudūd, 2/348, Ḥadīth: 1586; al-Sunan al-Kubrā by al-Bayhaqī, 7/442)
❖ Maximum Duration of Pregnancy
Scholars have differed regarding the maximum period of gestation:
- Imām Mālik رحمه الله: 5 years
- Imām al-Shāfiʿī رحمه الله: 4 years
- Imām Abū Ḥanīfah رحمه الله: 2 years
- Muḥammad ibn ʿAbd al-Ḥakam رحمه الله: 1 year
- The Ẓāhiriyyah (Literalists): 9 months
❖ Number of Offspring (Multiplicity of Ḥaml)
Since the unborn child cannot be seen, scholars have differed regarding the number to assume:
Some hold it to be one, others two, and some even three or four.
Note: Since Islamic rulings are based on customary norms, and generally only one child is born at a time, this is considered the strongest (rājiḥ) opinion.
If more than one child is eventually born, their additional shares will be collected from the other heirs after birth.
❖ Ruling
If the other heirs are unwilling to delay the distribution of the estate until the child’s birth, then:
- The largest possible share for the unborn child will be reserved, and
- The other heirs will receive the smallest possible portions.
This is done by calculating the inheritance twice — once assuming the unborn child is male, and once assuming female — and reserving the greater of the two shares for the unborn.
❖ Method of Calculation
- Consider the unborn child as male and as female, and prepare two separate inheritance problems (masā’il).
- Compare the two:
- If there is agreement (tawāfuq), multiply one denominator’s wafq by the other’s total.
- If there is no agreement (tabāyun), multiply one total by the other total.
- The resulting product is called “Jāmiʿat al-ʿAmal” (the unified denominator).
- For each heir:
- Multiply the share in the male case by the female case’s wafq,
- And the share in the female case by the male case’s wafq.
- Each heir receives the smaller of the two results, while the remainder is held in reserve until the child’s gender and number are known.
❖ Example
If a man dies leaving a pregnant wife, a daughter, a mother, and a father, then:
- The problem is solved twice — once assuming the unborn child is a male, once as a female.
- In the example, the male case totals 24 (corrected to 72), and the female case totals 27 (after adjustment).
- Since the ratios agree, the wafq is 8 for 72 and 3 for 27, and their product gives 216 (Jāmiʿat al-ʿAmal).
- Each heir’s smallest share is distributed, and the unborn child’s largest share is set aside until the situation becomes clear.
❖ Conditions for the Unborn to Inherit or Be Inherited From
① Existence of the pregnancy at the time of the deceased’s death, even if only in the form of a fertilized egg.
- If the pregnant woman is the deceased’s wife and delivers within the maximum recognized period, the child inherits, provided she does not claim that her ʿiddah has ended.
- If the pregnant woman is other than the wife (e.g., the deceased’s mother), and she delivers within the minimum period, the child inherits.
② The child must be born alive, even if only for a brief moment.
- Signs of life include movement, crying, or sneezing.
The Prophet ﷺ said:
لا يرث الصبي حتى يستهل صارخا وقال إستهلاله أن يبكي أو يصيح أو يعطس
“A child does not inherit until he lets out a cry; and his crying, wailing, or sneezing is the sign of that cry.”
(Sunan Ibn Mājah, al-Farā’iḍ, Bāb Idhā Istahalla al-Mawlūd Waritha, Ḥadīth: 2751)
Summary
- Ḥaml refers to the unborn child in the mother’s womb.
- The minimum gestation period is six months, derived from the Qur’an.
- Scholars differ on the maximum duration, ranging from 9 months to 5 years.
- The unborn inherits only if conceived before the deceased’s death and born alive.
- Distribution is calculated by assuming both genders and reserving the greater share until birth clarifies the matter.
