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Who Is The Guardian Of An Illegitimate Daughter When It Comes To Her Getting Married?

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A muslim man and woman had an affair and had an illegitamate child from that affair. The married woman took the child into her house and remained married to her husband. It was decided that the biological father would provide for his daughter and that she would live in the house of her mother and her mothers husband. The biological father became a very religious man and it is almost 20 years after this incident. She now lives in a house with her mother, her mother's husband and her older half-brother and half-sister.
Who is the wali of this girl? The biological father who provided for her for 20 years, the step-father, or her older half-brother who also lives with them?.


Praise be to Allaah.

Firstly:

The scholars (may Allah have mercy on them) differed concerning the illegitimate child. Is he to be attributed to his zaani father or not? There are two opinions, which have been discussed in the answers to questions no. 33591 and 85043. The more correct view is that he should be attributed only to his mother and that he should not be attributed to the zaani.

Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) said in Fataawa Islamiyyah (3/370): "With regard to the child who is born as a result of zina, he is the child of his mother, not of his father, because of the general meaning of the hadeeth in which the Prophet (peace and blessings of Allaah be upon him) said: ‘The child is to be attributed to the husband and the adulterer deserves nothing' – i.e., this is not his child. This is what the hadeeth means. If the man marries her after repenting, then the child has been conceived before marriage and repentance and is not his child; he cannot inherit from the man who committed zina even if he claims him as his child, because he is not his legitimate child." End quote.

Secondly:

Once it is established that the illegitimate child is not to be attributed to the zaani, then he has no ‘asbah [male relatives on the father's side].

It says in Asna'l-Mataalib (13/288): The illegitimate child has no ‘asbah because he is not attributed to the father. End quote from Tarqeem al-Shaamilah.

Some of the scholars are of the view that his ‘asbah with regard to inheritance is his mother, or his mother's ‘asbah [male relatives on her father's side]. With regard to guardianship for marriage and other matters, he has no ‘asbah.

It says in al-Iqnaa‘ (4/505): The ‘asbah of the illegitimate child is the ‘asbah of his mother with regard to inheritance only. … But they have no guardianship authority with regard to marriage or other matters. End quote.

Based on that, this girl does not have any guardian on the basis of blood ties, so her guardian is the Muslim ruler, because the Prophet (blessings and peace of Allah be upon him) said: "The ruler is the guardian of the one who has no guardian." Narrated by Abu Dawood (2083) and al-Tirmidhi (1102); classed as saheeh by al-Albaani in Saheeh Abi Dawood.

If you are in a country where there is no Muslim ruler, then her guardian is the director of the Islamic Centre in her country; if there is no such person then it is the imam of the mosque.

For more information please see the answer to question no. 7989.

And Allah knows best.

She received a marriage proposal from someone who is infertile and her family rejected him

I received a marriage proposal from a man who is infertile, and the doctor told him that he needs an operation. For this reason my family rejected him. What is the Islamic view on that? Please note that he is 13 years older than me and he is of good character and religiously committed.

Praise be to Allaah.

Infertility is one of the faults that affect marriage according to the more correct of the two scholarly opinions. This has been discussed previously in the answer to question number 121828.

The suitor has to disclose it, and the woman to whom he proposes has the right to accept him or reject him. If she accepts him with this fault, she does not have the right to request an annulment later on because of not having children. If she does not know about the fault and then finds out about it after marriage, she has the right to ask for an annulment if she does not accept the fault.

Ibn Qudaamah (may Allaah have mercy on him) said: One of the conditions of having the option to annul the marriage because of these faults is that one should not have had knowledge of them at the time of the marriage contract and should not have accepted them afterwards; if the person knew of them at the time of the contract or came to know of them afterwards and accepted them, then he or she does not have the option of annulling the marriage contract, and we do not know of any scholarly difference of opinion concerning that. End quote from al-Mughni, 7/142.

Having children is a blessing and is one of the aims of marriage, so a woman should not marry a man who is sterile or infertile unless she knows that it is possible for him to be treated and recover.

If your family are rejecting the suitor, then they are excused for that. Undoubtedly they are seeking your best interests and striving for your happiness.

If you think that this suitor is appropriate for you, because of his good character and religious commitment and because it is possible to treat his infertility, then you have no choice but to convince your family to accept him. If you manage to do that than praise be to Allaah; but if they insist on their opinion, then they are excused as stated above, and perhaps Allaah will send you someone who is better than this suitor.

It is well-known that marriage is not valid without a wali or guardian, because the Prophet (blessings and peace of Allaah be upon him) said: "There is no marriage without a guardian." Narrated by Abu Dawood (2085), al-Tirmidhi (1101) and Ibn Maajah (1881) from the hadeeth of Abu Moosa al-Asha'ri; classed as saheeh by al-Albaani in Saheeh al-Tirmidhi.

And he (blessings and peace of Allaah be upon him) said: "Any woman who gets married without the permission of her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid." Narrated by Ahmad (24417), Abu Dawood (2083) and al-Tirmidhi (1102); classed as saheeh by al-Albaani in Saheeh al-Jaami, no. 2709.

We ask Allaah to guide and help you.

And Allaah knows best.

 

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