Illegitimate children: Seeking a revision of the Law
Malaysia (TheStar): While the National Fatwa Council has ruled that a Muslim child born less than six months after the parents’ marriage is illegitimate and cannot bear his father’s name, a number of Muslim scholars think otherwise. They are calling for a review saying there is basis for it in Islam, writes SHAHANAAZ HABIB.
SCHOLAR Dr Mohamad Sujimon is perturbed when he hears of the National Registration Department’s (NRD) move to put tiada maklumat(“no information”) in the father’s name in the baby’s birth certificate if the baby is born less than six months of the parents’ marriage.
This is despite the biological father who is married to the mother being present to register the birth and acknowledging that the child is his.
“That is very bad,” he says, shaking his head.
“The father is entitled to say ‘this is my child’ even if the child is born less than six months from the date of the marriage,” he adds.
Dr Mohamad, an Al Azhar University graduate, has spent 10 years researching the issue of the illegitimate child in Islam. It was the subject of his PhD thesis.
He has also written a book titled The Problems of the Illegitimate Child in the Sunni Schools of Law.
For him, the child in such circumstances can still be affiliated to its biological father and take the father’s name in accordance with Islam, provided the father has acknowledged paternity, and no one else has come forward to claim paternity.
Stressing that renowned and respected Muslim jurists such as al-Hasan al-Basri, Ibn Sirin, al-Nakhai, Ishaq Rahawayh, Urwah al-Zubayr, Sulayman Yasar, Ibn Taymiyyah and Ibn Qayyim have all held this view, he points to the various hadith (Prophetic Traditions) cited by them as evidence backing this opinion.
Dr Mohamad says that while these views are mostly favoured by the Hanbali school of law, it is nevertheless also accepted by Maliki, Hanafi and the Shafie schools of law (though with the Shafie school it is not the majority view).
(There are four Sunni schools of law and Malaysia prescribes to the Shafie school.)
“The child is sinless. Scholars should look at the best interest of the child and try to find a solution. I am not advocating premarital sex or adultery or anything like that but the situation has happened where the child is born before six months of marriage.
“So the problem needs to be settled. I say deal with the child as a legitimate child. Allow the child to use his or her father’s name. This is allowed in Syariah law,” stresses Dr Mohamad, who is former dean of the Faculty of Islamic Revealed Knowledge and Human Sciences at the International Islamic University Malaysia and the Faculty of Syariah and Law at Sultan Sharif Ali Islamic University in Brunei.
He is now a senior researcher with the International Syariah Research Academy for Islamic Finance (Isra) in Kuala Lumpur.
Without the father’s name, the child loses the right of maintenance, the right of inheritance, custody and protection of the father. This is a significant blow not only materially but also emotionally, which could psychologically scar the child for life especially in a society where illegitimacy is scorned.[pullquote_left]Without the father’s name, the child loses the right of maintenance, the right of inheritance, custody and protection of the father.[/pullquote_left]
Dr Mohamad points out that there are six key elements in the Principles of Islamic Law (Maqasid al-Syariah), namely the protection of life, mind, family, wealth, dignity and religion and any ruling under Islamic law “should enhance not frustrate” these .
Therefore, stripping a child of its dignity and a healthy state of mind is, to him, unIslamic.
He also fears that couples might resort to abortion instead to “spare” the child from the shame of being declared illegitimate should he/she be born less than six months from the time they wed.
“Isn’t taking away a life more sinful? There are many question marks here. People must think! Islam is a rational religion,” he adds.
For him, the principles of Syariah are a constant reminder that the technicalities of the law should never undermine the objectives of the law, which include compassion, justice and mercy.
Concurring, Prof Dr Mohamad Hashim Kamali, CEO and chairman of the International Institute of Advanced Islamic Studies (IAIS), says that in Islam a father can claim the paternity of a child even in an illicit relationship.
He says there is a hadith that states that a child belongs to the firash. Prof Hashim explains that the word firash in Arabic means “resting place”.
“There is no reference to marriage. But jurists have understood this as the child belongs to the marriage bed’ and taken it to mean that only marital co-habitation is the valid attribution to the child.
“But some scholars have raised the point that firash, the resting place, actually means sexual intercourse which means that the child belongs to the conjugal bed’, not the marital bed’. The indication here is there is one man-one woman and it is an exclusive relation,” he stresses.
On the six months’ period, Prof Hashim argues that there is no direct text in the Quran that states the minimum gestation period of a baby is six months.
He says this is derived indirectly from two verses in the Quran: Surah 46 Verse 15 states that the gestation and weaning period of a baby is 30 months while Surah 2 verse 233 states that mothers should allow their babies to suckle (breast-feed) for two years.
Minus the 24 months of breastfeeding from the 30 months of gestation and weaning and it gives you six months, he says.
“There is a consensus on this derivative kind of conclusion but there is a difference between a clear text and one that is derived from an indirect reading.”
While this might be the majority view, he says, there is nevertheless a long line of interesting minority opinion going back to the time of leading jurists of the second generation after the companions of the Prophet such as Ibn Sirin, Al Nakhai (the teacher of Abu Hanifah of which the Hanafi school of law is established), Ibn Taymiyyah and Ibn Qayyim (prominent jurists of the Hanbali school of law) that suggest otherwise.
Prof Hashim says these jurists discuss the issue in the context of illicit relations where a child is born to an unmarried couple.
He says their view is that if there is acknowledgment of paternity by the couple, no dispute over the paternity and it is physically possible age-wise that the man is the child’s biological father, then paternity of the child is established.
“If they get married, that is an additional supporting factor,” he adds, stating that the Quran clearly says that “no soul has to carry the burden of another soul”.
“If adultery (or premarital sex) was committed by the parents, you cannot punish the child,” he stresses.
He believes “the NRD would not go wrong if they took this opinion” and applied this to babies born under six months of the parents’ marriage.
“There is support for it in Islam in a long line of juristic opinion. Even though it is a minority opinion but it is a significant position. I personally think it is in conformity with the general spirit and sentiment of Islam, the element of compassion and regard for public interest and protection of the child.
“There is a hadith that says that harm must neither be inflicted or reciprocated’ and that whenever there is harm, a way must be found out of it’.
“If there is a way to change that, we have to take that. Acknowledgment of paternity is that way. This is more compassionate and in conformity with public interest and its consequences much more acceptable.”
He says that once the acknowledgment of paternity is made, all the other rights should flow from it, including the lineage is of legitimate descent, the right to maintenance, guardianship, and the right to custody.
“There is no first class or second class or third class son and daughter once acknowledgment of paternity has been made,” he says.
While he is not surprised that the Fatwa Council has taken the majority-held view that a baby is legitimate only if it is born six months after the marriage, he asks “with due respect to them” that the council delve deeper into the issue because there are other things to consider.
“Why do we have to be literalists in this fashion? Why does the fatwa council think they can only be legitimate if they follow the most punitive version?
“Malaysian society does not deserve to be treated with this kind of ruling.
“Wisdom and compassion are so vital to understand Islam correctly in our time. Our ulama and mufti should always pay attention to this. Any idea, including religion, if you apply it in a dry literalist sense without the spirit of compassion, you can turn a beautiful thing into an ugly reality.”
International Institute of Islamic Thought and Civilisation (Istac) Prof Dr Mohamad Ajmal Abdul Razak Al-Idrus suggests that the authorities call for a muktamar (assembly) to discuss the issue among scholars of different Sunni schools to “find a solution in a progressive manner”.
He says there is already a precedence of accepting ideas from other schools like during the Haj when men and women can pray side by side, in front and behind one another, and that touching one another accidentally doesn’t invalidate the ablution for prayer.
“Writing tidak berkenaan (not applicable)’ under the heading bapa in the birth certificate disadvantages a child because it is a cause for discrimination and brands a child with a stigma it should not have to bear. It is ammunition for carping tongue’.”
Recently, the Terengganu Religious and Information chairman Khazan Che Mat also called on the Fatwa Council to reconsider the ruling because it causes psychological trauma to the children.
Khazan asked for a mechanism that would allow NRD to let these children take their biological father’s name.
“I know the council has adopted the majority view but there are alternative views too. I am asking them to revisit the issue. I feel sorry for the children,” Khazan says.
He says some of the children have had the names of their fathers on the birth certificate and have been using it all the while.
However, when they turn 12 and go to have to have their IC made, the NRD puts bin’ or binti’ Abdullah in the document their IC because a line in their birth certificate indicates they were born earlier than six months.[quote]“This causes major problems for the child as he wants to know why his name is now different from that of his siblings when he is not adopted. And why from secondary school onwards he has to change the name. Kesian (pity) the child. He is sinless.”[/quote]
NRD statistics show that slightly over 10% of babies born every year are illegitimate. For 2010, NRD registered 52,982 illegitimate births compared to with the previous year’s the figure, which was 52,378.
The numbers are for both Muslim and non-Muslim babies as, according to NRD, it does not separate the figures.
Former Fiji Mufti Sheikh Mohammed Ali says one should not blame the law and that the fault lies with society and how it scorns a child born out of wedlock as if this was the child’s fault.
“Half the issue will be solved if society understand that if the father’s genealogy is not proven, the child still has the genealogy from the mother and her family and has the right to inheritance, guardianship, and custody from her side.
“The woman’s father and brothers are busy blaming their sister and daughter but their bigger responsibility is to help the child and the mother to bring up the child.”
Sheikh Mohammed believes the six months’ ruling is there to protect a man who is newly-married from having to bear responsibility for a child who is not his own.
“Syariah doesn’t have emotions. That is how Islam is different from other religions.
“In other religions, ethics and law are emotional and where new problems arise, they change the law, they change the ethics. The Syariah is not like that,” he says.
He agrees that when the biological father comes forward to acknowledge paternity of the child, there is room for the child to be legitimate.
“When the man and woman realise what they have done and want to take responsibility and give a good name to the child, the Hanafi school allows such a possibility,” he says.
What about the legal aspect?
Can affected Muslims who are unhappy with the fatwa ruling challenge it in court?
Constitutional law expert Prof Dr Shad Saleem Faruqi (pic, above) from UiTM says issues of Muslim legitimacy are in the hands of the states.
The state assemblies that have the power to legislate on issues of Muslim legitimacy so the Births and Registration Act 1957 will not apply on the issue of legitimacy, he explains.
But he says the constitutional question is whether the states had actually exercised their power under Schedule 9 List 11.
“If they did or if they delegated their power to fatwa committees, there is no issue. But if the state legislatures have not passed a legitimacy provision or has not delegated its legislative power, and the syariah executive is issuing fatwa without legislative authority, then the fatwa may be challenged as unconstitutional and ultra vires.
“But the problem is if an ordinary person challenges, he will be denied locus standi. If the father challenges it, he will be vilified and subject to criminal prosecution for zina. It’s a Catch 22 situation.”
Prof Shad says another approach would be to argue that the registration of birth is one thing and legitimacy another and that the federal department concerned should do its job to register the birth and parentage.
“And that it is not its job to determine legitimacy,” he says.
There is also a human rights issue involved, he says, which is the right of the child to have his parentage acknowledged.
“If the biological mother is acknowledged, why not the biological father? There is gender discrimination operating here.”
Perhaps it is time for the Fatwa Council to brainstorm on and re-look the whole situation, keeping the interest of the innocent child.