Assalamualaikum wr wb,

 

Alhamdulillah. All praises is to Allah s.w.t, peace and blessings to our Prophet Muhammad s.a.w, his family, his companions and to our teachers from before and during our time.

 

Please be informed that tonight's lecture will be a live session. You may watch the lectures on Masjid Darul Makmur Facebook or YouTube channels after Maghrib.

 

This online lecture addresses the questions raised referring to Questions on the Topic of Zina and Children born out of Zina which was held on 27th September 2020.

 

* Please take note for those who recently subscribed to our newsletters that the Kuliah is delivered in Malay. We do our best to get our writer to transcribe and summarise as much points as possible in English for the benefit of our readers. 
 

Questions on the Topic of Zina and Children born out of Zina

Questions & Answers Related to Last Week’s Topic

Zina is Forbidden in the Qur’an

وَالَّذِينَ هُمْ لِفُرُوجِهِمْ حَافِظُونَ

And those who guard their private parts [23:5]

 

إِلَّا عَلَىٰ أَزْوَاجِهِمْ أَوْ مَا مَلَكَتْ أَيْمَانُهُمْ فَإِنَّهُمْ غَيْرُ مَلُومِينَ

except with their spouses or their slaves – with these they will not be blamed, [23:6]

 

فَمَنِ ابْتَغَىٰ وَرَاءَ ذَٰلِكَ فَأُولَٰئِكَ هُمُ الْعَادُونَ

But whoever seeks beyond that, then those are the transgressors [23:7]

 

In the last lecture, we covered the above verses. These verses emphasise that Zina (adultery) is an act that is forbidden in Islam. This position has been held by all scholars of the Muslim Ummah from the time of Rasulullah SAW up to today.

 

According to the consensus of the scholars, the small proportion of people who say that Zina is not haram are said to have dropped out from the religion of Allah SWT. This is because saying so is in direct opposition to the clear verses of the Qur’an regarding this matter. In addition to the verses of Surah Al-Mu’minun, there is also a verse in Surah Al-Isra’, where Allah SWT says:

 

 

وَلَا تَقْرَبُوا الزِّنَا ۖ إِنَّهُ كَانَ فَاحِشَةً وَسَاءَ سَبِيلًا

And do not go anywhere near adultery: it is an outrage, and an evil path. [17:32]

 

This shows that Zina is something that is not only displeasing to Allah, it is also forbidden and repulsed. Scholars say that if “coming close” to something is forbidden by Allah, then the act itself is even more forbidden by Allah. This act is so hated by Allah SWT that a severe penalty is commanded upon those who commit it. In Surah An-Nur, Allah SWT says:

 

الزَّانِيَةُ وَالزَّانِي فَاجْلِدُوا كُلَّ وَاحِدٍ مِّنْهُمَا مِائَةَ جَلْدَةٍ ۖ وَلَا تَأْخُذْكُم بِهِمَا رَأْفَةٌ فِي دِينِ اللَّهِ إِن كُنتُمْ تُؤْمِنُونَ بِاللَّهِ وَالْيَوْمِ الْآخِرِ ۖ وَلْيَشْهَدْ عَذَابَهُمَا طَائِفَةٌ مِّنَ الْمُؤْمِنِينَ

Strike the adulteress and the adulterer one hundred times. Do not let compassion for them keep you from carrying out God’s law––if you believe in God and the Last Day––and ensure that a group of believers witnesses the punishment. [24:2]

 

Zina is clearly Haram in Islam, there is no question about that. There is no difference of opinion regarding the prohibition of Zina.

 

Reasons behind Rulings and Exceptions in Islam

Now before we dive deeper into this topic, I do want to touch on certain things. We have learnt previously how in Islam, there are certain exceptions that can be made in matters that are in principle obligatory for Muslims.

 

For example, Wudhu’ is required for Salah to be valid. However, someone who has an illness where touching water is detrimental to their health can perform Tayammum instead.

 

Fasting in Ramadhan is obligatory for all Muslims. However, a Muslim who is sick or travelling may choose not to fast in Ramadhan and repay it back outside of the month. Islam is a religion that facilitates ease, Allah does not want to make the religion difficult for you.

 

Likewise, when it comes to the prohibition of Zina, scholars have discussed intensively to come to certain conclusions about this ruling. Scholars have agreed that Zina is forbidden by Allah SWT in order to protect the progeny. There is a reason behind every prohibition, there is always a benefit to mankind behind every command of Allah SWT.

 

In the works of Imam Al-Ghazali Rahimahullah who took inspiration from his teacher, Imamul Haramain Imam Al-Juwaini Rahimahullah, there are always five principles that have to be maintained in every ruling in Islam; we call these the Daruriyyat al-Khams – the Five Fundamental Needs. Without either of these five needs fulfilled, human life would cease to exist.

 

Daruriyyat al-Khams – the Five Fundamental Needs

• Religion
• Life
• Reason
• Property
• Progeny

In Islam, every single command of Allah – all the rulings, prohibitions, and instructions – serve only to preserve these five needs. If these needs are destroyed, then human life is destroyed.

 

Anyone who claims that a certain deed is done for the religion, but that deed encroaches upon any of these five needs – for example it threatens life or causes immense damage to property – then that deed cannot be truly in line with Allah SWT’s commands.

 

First, we have Religion. How can life exist without a firm Aqedah or Belief in Allah SWT? For someone who is a disbeliever, then their life is destroyed, if not in this world then in the next. Likewise, for life, it must be preserved. Reason is important to be protected.

 

Therefore, alcohol consumption is forbidden in Islam; it interferes with a sound mind. Wealth needs to be preserved; thus, stealing, robbing, lying, and cheating is forbidden, and Zakat is made obligatory. Lastly, the Progeny needs to be preserved. So those are the things that are Daruriyyat – they are essential for life.

Then there are things that are Hajiyyat – not essential for survival, but without them, life would be really difficult. An example is education; not going to school will not cause your life to be terminated. However, making a living would become difficult for most people without a proper education in today’s world.

 

Preservation of Progeny

Now we would like to focus on the fifth aspect of the Daruriyyat Al-Khams. Zina is made haram in order to preserve the progeny. In Arabic, we refer to the ‘Preservation of Progeny’ as حِفْظُ النَّسَب (Hifz An-Nasab) or حِفْظُ النَّسَل (Hifz An-Nasl) or, very rarely, it is referred to as حِفْظُ العَرَض (Hifz Al-‘Aradh).

‘Hifzul Nasab’ refers to the ‘Preservation of Lineage’. When we speak about preserving Lineage, we ensure that down the line of many generations, the status of the people in the lineage is clean and untainted. This means that the lineage is Sah (valid).

 

Each child is born out of a valid marriage. If someone along the many generations were to be born out of wedlock, out of Zina, then the lineage is no longer preserved, there is a smear in the clean line – a break in the lineage.

 

‘Hifzul Nasal’ refers to the ‘Preservation of Progeny’. When we speak of preserving Progeny, what we are taking care of is the child. We ensure that the child is protected from harm and given his due rights in terms of love, comfort, safety and a good upbringing. This is what we mean when we speak of ‘Preserving the Progeny’.

 

‘Hifzul ‘Aradh’ refers to the ‘Preservation of Dignity’. When we speak of preserving Dignity, what we mean is to protect a person’s self-respect. In Islam, we are forbidden from slander, gossip, backbiting, cursing, accusing others wrongfully etc.

 

The preservation of a person’s status and dignity is essential; this is one of the reasons why Zina is made Haram. Zina is the cause of human beings losing their self-worth, exposing themselves to shame that is filthy; it is filth that smears their person, their life, and their character.

 

Preserving dignity is essential to ensure that the man, the woman, and the child are able to resume life in a good manner. When dignity is lost, when a child is looked down upon by society, when he views himself as disgraceful and despicable because he knows that he wasn’t born out of a valid marriage, when he is labelled as a child born out of wedlock, the child’s self-esteem is shattered. This will affect his quality of life as a person.

 

So as an overview, if a child’s lineage and dignity is preserved, then the progeny is preserved. This is the link between the three stands given.

 

Can a Child of Zina be Raised by her Non-Mahram Biological Father?

Q: Some people say that a female child who is born out of wedlock is not Mahram with her own biological father. My question is, if the family of the biological mother of the child refuses to take care of her, is it permissible for the biological father of the child to take care of her?

 

A: As the child was conceived out of an invalid relationship between her biological parents, the scholarly consensus is that the child will not have a link (in terms of lineage) between the biological father and herself.

 

He is not considered her father and has no rights over her. The link between the child and the biological mother is undeniable, she is the one who births her and therefore they are linked by blood.

 

If the biological mother’s family does not want to care for her, then we do not just consider the preservation of dignity and lineage. We look at the child’s needs, the rights of the child to be cared for, loved, and nurtured well.

 

In this instance, I would say the man has the right to take custody of the child – provided he wants to take care of her well. Rather than leaving her abandoned and neglected by her mother, further leaving her in further hardship and loss, the man should take care of her.

 

We look beyond the validity of the relationships to ensure that the child’s life is preserved. We want to protect her from harm and to give her what she needs most. Do not ask me if this is permissible; I would reply, “Why not?”.

 

There is honour given to a person who choses to raise an orphan – someone without any blood ties to him. So, in this situation, even though the child is not given the link in terms of lineage to the biological father, it was still him who caused the conception of the child.

 

If he wants to take responsibility for it, then there is nothing stopping him from doing such a noble deed. How can taking care of his abandoned child not be a noble deed if raising an orphan is? If the man chooses to raise the child, then she will be considered as an adopted daughter to him.

 

The Issue of Raising Non-Mahram Children

People ask about the fact that he is a non-mahram. When the child grows, would there not be an issue of Aurah in the household? He is not considered related to her. Scholars have discussed this matter in depth for years.

 

According to the majority of scholars, in Singapore, the Fatwa committee have made rulings on the issue of adopted children and foster children. A Muslim child who does not get taken care of by a good Muslim family may become exposed to detrimental harm to their person, character, safety, well-being, and faith.

 

So how do you take care of a non-mahram child in the family? Scholars say that that is a secondary issue. The primary issue is fulfilling the child’s rights to a good, safe, and decent upbringing. There are concessions in this matter in the religion. When it came to a non-mahram slave, the conditions of Aurah were eased for a freed woman and her male slave.

 

Likewise, for a girl who is raised by non-mahram parents, there will be some ease in practicing the religion. She will not be expected to wear full aurah-covering attire all the time with the family that raises her, that would bring about much difficulty to her.

 

You can refer to the fatwa given by MUIS (Malay fatwa found here) with regard to this issue. This is an issue that is so extensive in the Muslim community in Singapore that the Fatwa committee felt it was necessary to come up with rulings that bring ease and relief in practicing the religion.

 

The number of children born without a valid father is remarkably high in the community. According the Report of Registrations of Births and Deaths by the Immigration and Checkpoint Authority (ICA), in 2018, there were 434 children born to single mothers (where no legal father exists).

 

Out of these 434 births, 188 babies (43%) come from Malay mothers. In 2019, this proportion grew to 44% (168) of single mother births. This number is worrying considering that only about 13% of the Singapore resident population is Malay.

 

Do you not think that this is the shared responsibility of the community? The responsibility of raising a child born without a father cannot be borne solely by the mother and the mother’s family; this is something that goes against the teachings of Islam. This happens to the extent that a mother’s natural maternal instincts towards the child can become lost.

 

What I mean to say is that out of all human beings, the strongest link a child has is to his mother. The emotional connection of a father to his child cannot possibly compete with that of a mother to her child. The last person who would ever think about leaving a child neglected would naturally be the child’s mother.

 

Yet we hear of cases of children being neglected and abandoned by their own mothers. There are babies being found in the rubbish bin, being flushed down the toilet, being left by the roadside. These babies are abandoned by whom? By mothers who conceive out of wedlock, whose babies are born out of Zina. The act of Zina even causes a woman’s maternal instincts to disappear.

 

So, if you want to busy yourself with the legality of a man taking care of his child out of wedlock, then you are completely missing the whole point. The child’s safety and well-being should be your priority. A child left to a mother who has no interest in raising her may abandon or neglect her, causing her to end up in alternative childcare arrangements like foster care.

 

The kind of love and nurturing that she will get from a temporary placement like a foster home cannot compare to that of a permanent home. A child’s upbringing and emotional state should be prioritised in such situations.

 

The Multiple Scenarios for the Fatherhood of a Child of Zina

Q: I understand that in Islam, there is no lineage between the biological father of a child and his biological child. Can we consider the biological father of the child to be the stepfather of the child? Afterall, he did have sexual intercourse with the child’s biological and legal mother.

 

A: There are multiple scenarios when it comes to this situation.

• Zina → Pregnancy → No Nikah → Birth → No Nikah
• Zina → Pregnancy → No Nikah → Birth → Nikah
• Zina → Pregnancy → Nikah → Birth (before 6 months)
• Zina → Pregnancy → No Nikah → Birth (after 6 months)

The minimum period of pregnancy in Islam is six lunar months. If a woman gives birth to a child before the six months have passed since the nikah, then the child is considered a child born out of Zina.

 

In Scenarios (1) and (2), in Islam, there is no relationship between the biological father and the child born out of Zina. A very small minority of scholars do say that in Scenario (2), because a nikah does happen, there can be a relationship between the biological father and the child. However, the vast majority hold the consensus that there is no link between the man and his biological child.

 

In Scenarios (3) and (4), there is a difference of opinion. In Scenario (4), scholars say that if the man pledges that that child is his, he knows that the child’s biological mother did not have any other partners, then he can be deemed as the father of the child.

 

A portion of scholars disagree with this opinion, saying that the child was conceived out of Zina before Nikah. The majority of opinions say that for the reason of Preserving Progeny, the man can claim paternal rights.

 

There is a bigger difference of opinion in Scenario (3). The majority of scholars say that because the child is born before six months have passed, and six months is the minimum period for a pregnancy to be completed, then there is no way that the child was not born out of Zina.

 

Therefore, the biological father has no legal right to claim the title of the child’s father.  There is a small portion of scholars, particularly a portion of those in the Hanafi Mazhab, who hold the opinion that even if the child is born a week after the Nikah, for as long as a Nikah did happen, and the man claims to be the child’s father, then the man is his father.

 

This is an opinion that we do not hold in our Mazhab. There are certain opinions that say that regardless of when the child is born, for as long as the man claims to be the child’s father and there was a Nikah, then the man is the legal father of the child.

 

This is an opinion held by the earliest scholars from amongst the Tabi’in – big names such as Ibn Sirrin, Ishak bin Rahawaiyh, Urwah bin Zubair, Hasan Al-Basri, Sulaiman bin Yassar. We acknowledge their opinion but know that in our present fatwa in our Mazhab, we only accept fatherhood in the case of Scenario (4).

 

Now going back to the question, the relationship of stepchild to stepfather can only exist in the situation where a Nikah happens. So, if a Nikah does not occur, even though the man and the biological mother of the child have had sexual intercourse, the child is not automatically considered a stepchild. So out of the four scenarios above, only in the case of Scenario (2) can the biological father be considered a stepfather to the child.

 

Other Questions with Regard to a Child of Zina

Q: Can a Child of Zina Use their Biological Father’s Name?

 

A: The question is raised of whether a child of Zina can be attributed to his or her biological (but not legal) father’s name. For example, if the biological father is called Dol, then is it permissible for the child to be named “Siti Binte (daughter of) Dol” or “Mat Bin (son of) Dol”? In Malaysia, the Mufti and Fatwa committee of most states say that this is not permitted.

 

In Perlis, this is allowed. For those of you who are interested can have a look to see the reasons. In Singapore, it is not permitted to name the child with the father’s name as there is no Islamic legal relationship between them. You can use “Abdullah” (meaning slave of Allah) or any other names of Allah. Fatwa can shift and change. In a couple of years’ time, this stand can be reviewed and changed based on the circumstances and situation of the time.

 

Q: Is the Nikah of a Woman Who is Pregnant from Zina Valid?

 

A: There are certain things that are shared on social media platforms that I need to bring up. One of it claims that “When a woman becomes pregnant out of Zina, and she marries the biological father of the child, then the Nikah is not Sah (valid).

 

Therefore, for as long as the couple thinks they are married, any sexual intercourse they have is considered Zina, and any children born thereafter are still considered children born out of Zina.”. There is no truth to this claim.

 

If a woman is pregnant out of Zina, is it permissible for her to Nikah? The answer is yes. The ruling that a pregnant woman cannot get married until the child she is carrying is born only applies to the ‘Iddah period.

 

The ‘Iddah period only applies in situations of Talaq (divorce). Talaq can only occur if a Nikah has already been performed. An unmarried woman cannot be divorced; there is no ‘Iddah period. She is allowed to perform Nikah during her pregnancy.

 

Q: Is it true that there is a hadith saying that a child born out of Zina cannot enter Paradise?

 

A: This is completely false. Do not forward such messages or post them on your social media. This supposed hadith is not authentic. Its authenticity is too weak to be used as an evidence.

 

In Islam, we know that every child is born in their Fitrah (natural state) – all babies are clean and pure. In the Qur’an we are taught that no person bears the sins of another. The people who sin are the child’s biological parents, the sin is not his to bear.

 

The child has the same status and honour as any other child born in the world. These children are not to be looked down upon just because of what their parents had done. In fact, if the child’s biological father does not marry the child’s mother, then the child holds the same status as an orphan.

 

It becomes our responsibility to care for them even more than it is for an orphan. For an orphan, he may have lost his father, but his own status in society is unaffected. For a child born of Zina, they are often criticised, condemned, and mocked, in addition to the loss of the father.

 

Be careful before you spread messages such as these. Do not spread falsehood and leave people in confusion and despair.

 

Q: When the time comes for a girl born out of Zina to marry, who will perform her Nikah? Who is to be her Wali?

 

A: Ask the question to the people at the Registry of Muslim Marriages. Be straightforward and ask about your status. The Kadi will look with you to see which of the four scenarios you belong to and what the status of the biological father is to you.

 

If it is determined that your “father” is not legally your father in Islam, then the Kadi will become your Wali. Move on in life and build a strong marriage with your spouse.

 

Do not be resentful about the past and what happened. Do not blame your parents, especially not your mother. Make du’a for your parents with the hope that Allah SWT forgives the repentance of your parents. You go on to live your life to the fullest, putting the past behind you.

 

May Allah grant us all understanding of His Religion. May He protect us and make it easy to do what is right and make decisions that are best for us in this world and the next. Ameen. I love you all for the sake of Allah.

 

May we meet again in the next session. Ameen.