10. ESTABLISHING PATERNITY
ESTABLISHING PATERNITY
The husband of a woman who bears a child (no matter whether his marriage to her is valid or invalid) is considered to be the child’s father whenever it is (legally) possible that the child could be his, meaning that:
a) the woman gave birth to the child six months plus a moment after the marriage agreement;
b) she gave birth to it less than four years from when she and her husband could last have possibly met and had sexual intercourse, even if they were living at a distance from one another, and even if the husband does not know whether he had sexual intercourse with her. (These conditions are for the child’s protection against being disowned, and only concern what can be established in court. Hence, if the husband and wife were living apart at a distance at whic4 they could possibly have travelled and met, for the child’s sake the court presumes the child to be the husband’s);
c) and the husband is at least nine and a half years old.
The husband is not legally considered the child’s father when the child could not possibly be his, such as when:
1. (non- (a) and (b) above) the wife gave birth to the child in less than six months or more than four years since intercourse;
2. (non- (b) the husband is absolutely certain he did not have sexual intercourse with her;
3. (non- (c) the husband is under the above-mentioned age;
4. or the husband’s genitals have been dissevered.
Whenever a husband is absolutely certain that a child which is legally considered his is not his, by knowing that he never had intercourse with the wife at all (or did, but less than six months or more than four years before the birth), then he is obliged to deny paternity by public imprecation (li’an) (immediately, because denying paternity of a child immediately is like the return of defective merchandise. He does so by going to the Islamic judge and saying, “This child is not mine. ” If he delays, his denial is no longer valid. As for the public imprecation itself, he may perform it at an y time thereafter. If he claims that he was ignorant of the necessity of denying paternity, or the obligatory character of its immediacy, and he is someone who might well be ignorant of it, then his claim (A: of ignorance) is accepted when he swears an oath to that effect. Denial of paternity likewise entails charging the wife with adultery, and this too is obligatory immediately).
If a husband is not absolutely sure that the child is from someone else, it is unlawful for him to deny paternity (as mere doubts that have arisen in his mind are of no consequence) and unlawful to charge his wife with adultery. (It is also unlawful for him to publicly imprecate against her in such a case, even when he knows she has committed adultery, because the child would suffer harm through his mother being charged with adultery and its being established against her by public imprecation, the child being disgraced by this and gossip circulated about him, the child need not endure this harm merely to satisfy the husband’s revenge, who may separate from her by divorce.)
When a child is legally considered to be from a husband who is entitled to deny paternity but delays doing so without excuse and subsequently wants to deny it by public imprecation, we (i.e. the judge) do not allow him to do so (because denial of paternity must take place immediately, and his delay obviates the possibility of denial), But if the husband intends to deny paternity immediately, we implement his intention.
(Source: The reliance of the traveller, revised edition, Edited and Translated by Nuh Ha Mim Keller)
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John Doe
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