Islamic Fiqh > Judgment and testimony > Judgment (qada) and its conditions > The wording of the judgment (sigha)
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Updated on 26 September 2026 at 7:12 PM
The formula (sigha) is the fourth pillar of judgment: it covers the words by which the party acknowledging a right expresses himself, and on which the effect of his acknowledgment depends. The following sheets review the situations this formula may involve: the exception (istithna) of part of the debt, the rectification (istidrak), acknowledgment suspended on the will of Allah or of another person, its subordination to a condition or to an option (khiyar), then the acknowledgment of lineage (nasab) and the status of a woman's word. The positions of the Hanafis, Malikis, Shafi'is and Hanbalis are reported with their proofs from the Quran, the Sunna and the language of the Arabs, along with quotations from the imams of each school.
"One", "except one" or "apart from one": the exception is valid with all these terms, and two were repudiated (Al-Hawi al-Kabir 10/252).
The jurists agree on the validity of exception in acknowledgment (iqrar), because it is the language of the Arabs and the Quran came down with it, as in the saying of Ibrahim, the intimate friend of Allah (peace be upon him):
"I am innocent of what you worship, except for the One who created me"
Surah Az-Zukhruf, 26-27
and the saying of Allah, Most High:
"He remained among them a thousand years, except fifty years"
Surah Al-Ankabut, 14
Exception in acknowledgment has four cases. The first: excluding the few from the many.
The people of knowledge agree on the validity of excluding the few from the many, as when one says: "I owe ten dirhams except three dirhams". There is no disagreement on its validity: seven dirhams then bind him, because exception is in reality speech concerning what remains after the pair (al-thunya), as if he had said: "I owe so-and-so seven dirhams", except that the seven bears two names: one is "seven", the other "ten except three".
Allah, glorified and exalted be He, said: "He remained among them a thousand years, except fifty years" (Surah Al-Ankabut, 14), meaning he remained among them nine hundred and fifty years. And regarding the saying of the Prophet (peace and blessings of Allah be upon him):
Allah has ninety-nine names, a hundred except oneReported by al-Bukhari (2585)
he excluded the few from the many. Likewise when one says: "I owe so-and-so a thousand dirhams besides (siwa) three dirhams", for "siwa" is among the words of exception (Bada'i' al-Sana'i' 7/209; Sharh Sahih al-Bukhari 8/137).
Imam Ibn Hazm (may Allah have mercy on him) said: they agreed that excluding the lesser of its kind while the greater remains is valid (Maratib al-Ijma', p. 56). Imam Ibn Rushd (may Allah have mercy on him) said: when the lesser is excluded from the greater, I know of no disagreement that the exception is valid and the excluded falls away (Bidayat al-Mujtahid 2/60). The vizier Ibn Hubayra (may Allah have mercy on him) said: they agreed that if one acknowledges something and excludes the lesser of it, his exception is valid (Al-Ifsah 1/460).
Imam al-Zarkashi (may Allah have mercy on him) said: excluding the lesser is valid without dispute, and excluding the whole (kul) is not valid, without dispute (Sharh al-Zarkashi 2/155). He said in another place: there is no dispute on the validity of excluding the lesser, nor on barring the exclusion of the whole (Sharh al-Zarkashi 2/475).
Imam Ibn Qudama (may Allah have mercy on him) said: as for excluding part of what entered into the excluded-from (al-mustathna minhu), it is valid without disagreement, as far as I know, for that is the speech of the Arabs and it occurs in the Book and the Sunna. Allah, Most High, said: "He remained among them a thousand years, except fifty years" (Surah Al-Ankabut, 14), "The angels prostrated, all of them together, except Iblis" (Surah Al-Hijr, 30-31), and the Prophet (peace and blessings of Allah be upon him) said concerning the martyr:
All his sins are forgiven him, except the debtWords of the Prophet (peace be upon him)
This is abundant in the Book, the Sunna and all Arab speech. If one acknowledges something and excludes part of it, he is acknowledging the remainder after the exception. When he says: "He has against me a hundred except ten", he acknowledges ninety, because the exception prevents what would otherwise enter the utterance from entering it: were it to enter, it could no longer be removed, and were he to acknowledge the ten excluded, their denial would no longer be accepted from him.
Allah's saying, "He remained among them a thousand years, except fifty years", is information of nine hundred and fifty. The exception shows that the fifty excluded are not intended, just as specification (takhsis) shows that the specified is not intended by the general utterance. If he says "except a third or a quarter of it", it is valid and he acknowledges the remainder after the excluded. If he says: "This house belongs to Zayd, except this room", he acknowledges all of it except the room.
Likewise if he says: "This house is his, and this room is mine", it is also valid, for it carries the meaning of exception: he removed by connected speech part of what had entered the first utterance. If he says: "These slaves are his, except this one", it is valid and he acknowledges all the others. If he says "one of them", it is valid, for acknowledgment is valid even concerning an unknown, and so too is exception from it; reference is then made to him for determining the excluded, for the ruling attaches to his statement and he knows best what he meant (Al-Mughni 5/91-92).
The jurists differed on the ruling of excluding the many from the few, as when one says: "He has against me ten dirhams except nine". Is it valid, with one dirham binding him, or not valid, with the ten binding him?
The Hanafis according to the zahir al-riwaya (the school's manifest transmissions), the Malikis according to the authentic (sahih) text of their school, and the Shafi'is hold that excluding the greater from the lesser is valid: if he says "He has against me ten dirhams except one dirham", one dirham binds him, by the saying of the Most High:
"He said: My Lord, because You have led me astray, I will make evil fair to them on earth and lead them all astray, except Your sincere servants among them. He said: This is a straight path over My servants: you have no authority over them, except whoever follows you of the astray"
Surah Al-Hijr, 39-42
He excluded at one time the astray from the sincere servants, and at another the sincere servants from the astray, and one of the two groups is more numerous than the other: proof of the validity of excluding the greater. Moreover, the exclusion of the greater exists in their speech and appears in their poetry. The poet said: "Return the one who lacks ninety of a hundred, then send a judge who speaks the truth".
And because what leaves through the exception is neither in the utterance nor intended by it, the ruling of its few and its many is the same: if he says "He has against me a thousand except nine hundred", it is valid. And because the reality of exception is removing from speech what would otherwise be obligatory, as the people of the Arabic language defined it, without restricting that to the excluded being less or more than what remains. And because the purpose of exception is as it were a rectification by the speaker of himself regarding what he expressed in a general formula, and the few and the many are alike in that.
And because it is transmitted from the imams of the language (may Allah have mercy on them) that exception is speech concerning the remainder after the pair: this meaning, present in excluding the few from the many, is also present in excluding the many from the few. Yet this kind of exception is not approved (mustahsan) in the view of the people of the language, for they instituted exception only out of the need to correct a mistake, and a mistake of this kind is extremely rare, so there is no need to correct it. But it may occur overall, and the exception is then valid (Bada'i' al-Sana'i' 7/210; Sharh Sahih al-Bukhari 8/136-137; Al-Ishraf 'ala nukat masa'il al-khilaf 3/92-93; Al-Hawi al-Kabir 7/20-21; Al-Bayan 13/455; Al-Ifsah 1/460-461).
The Hanbalis, Abu Yusuf among the Hanafis, and Abd al-Malik b. al-Majishun among Malik's companions hold that excluding the greater from the lesser is not valid and the whole is retained: whoever says "He has against me ten, except nine, or except eight, or except six" has the whole retained against him and owes ten, for exception appears in the tongue of the Arabs only for the lesser, and they disapproved of excluding the greater. Abu Ishaq al-Zajjaj said: exception only occurs for the few of the many; if a man were to say "a hundred except ninety-nine", he would not be speaking Arabic: it would be defective speech, a lisp (lukna).
Al-Qutaybi said: one says "I fasted the month except one day", but not "I fasted the month except twenty-nine days"; one says "I met the people, all of them, except one or two", and it is not permissible to say "I met the people except most of them". If it is not correct in speech, what is acknowledged is not lifted by it, like excluding the whole, just as if he said "He has against me ten, rather five" (Bada'i' al-Sana'i' 7/210; Sharh Sahih al-Bukhari 8/136-137; Al-Ishraf 3/92-93; Al-Ifsah 1/460-461; Al-Mughni 5/102-103; Manar al-Sabil 3/539).
According to a narration of the Hanbalis, and according to Imam Muhammad b. al-Hasan and Zufar, it is not permitted. The jurists differed in the case of one who acknowledges something, for example: "He has against me a thousand dinars except a garment, or except a measured or weighed item". Is it valid or not?
The Malikis and Shafi'is hold that the excluded may be of a kind other than the excluded-from absolutely, by the saying of the Most High: "They prostrated, except Iblis, who was of the jinn" (Surah Al-Kahf, 50): He excepted him though he was not of them. And He said: "They hear therein no idle talk and no incitement to sin, but only: Peace, peace" (Surah Al-Waqi'a, 25-26). And the poet said: "In a town where there is no companion, except the ya'afir, except the 'is": he excepted the ya'afir, the males of the gazelles, and the 'is, the white camels, from companionship. On this basis, if he says: "He has against me a thousand dirhams except a garment", he is excluding the value of the garment or the value of what he excluded (Al-Ishraf 'ala nukat masa'il al-khilaf, 93 and 95, no. 952; Al-Bayan 13/456-457).
The Hanafis say: if the excluded is of a kind other than the excluded-from, consideration is given to the case. If it is of what establishes no debt on the liability (dhimma) at all, like the garment, the exception is not valid and all of what he acknowledged binds him, when he says "He has against me ten dirhams except a garment". If it is of what establishes a debt on the liability absolutely, among the measured, the weighed and the counted of close value, when he says "I owe so-and-so ten, except a dirham, or except a qafiz of wheat, or a hundred dinars except ten dirhams, or a dinar except a hundred walnuts", the exception is valid according to Abu Hanifa and Abu Yusuf, and the value of the excluded is deducted from what he acknowledged.
According to Muhammad and Zufar, the exception is not valid at all, for exception is the extraction of part of what would otherwise have entered under the wording of the excluded-from, and that is realized only within the same kind: that is why, were the excluded a garment, the exception would not be valid.
The reason for the position of Abu Hanifa and Abu Yusuf is that what enters under his statement "I owe so-and-so ten dirhams" is described as absolutely due, named as dirhams: if the meaning of homogeneity cannot be realized in the name of dirhams, it can be realized in the absolute obligation on the liability, for wheat, in its capacity to bear the absolute obligation on the liability, is of the kind of dirhams. Does one not see that it becomes a debt described on the liability, falling due through loan (istiqrad) and consumption (istihlak), as it becomes through salam and as an immediate price (thaman hal), like the dirhams? As for the garment, it does not bear obligation on the liability absolutely, but only through salam or as a deferred price.
As for what bears neither loan, nor consumption, nor an immediate non-deferred price, the meaning of homogeneity between the two can then be realized in the description of the absolute obligation on the liability, when it is not found in the name of dirhams, and the exception can thereby produce its meaning, which is exclusion under one aspect. But there is no homogeneity between garments and dirhams, neither in the name nor in the capacity to bear the absolute obligation on the liability: the meaning of exception is thus nullified at the root. That is the difference.
If one acknowledges to a person a house while excluding its building for oneself, the exception is void, for the name "house" does not linguistically encompass the building: it was coined to indicate the plot (al-'arsa), and the building stands in it as an attribute. The excluded is therefore not of the kind of the excluded-from, the exception is not valid, and the house with its building belongs to the beneficiary of the acknowledgment.
For if the name of house is not general, it nonetheless encompasses these parts by way of inclusion (tadammun), like one who acknowledges to another a ring: the band (halqa) and the gem (fass) belong to him; not because it is a general name, but it is the name of a single named thing, the composite of band and gem, which he nonetheless encompasses by inclusion. Likewise one who acknowledges to another a sword: the blade (nasl), the jafn (the mouth of the scabbard) and the straps (hama'il) belong to him, for what we have said. Likewise one who acknowledges a partridge (hajala): the sticks and the covering belong to him.
On the contrary, if one excludes a quarter of the house, its third, or a part of it, the exception is valid, for we established that the house is a name for the plot: the excluded is thus of the kind of the excluded-from and the exception valid. And if one says: "The building of this house is mine, and the plot belongs to so-and-so", it is valid, for the name "building" does not encompass the plot, which is the name of the parcel (Bada'i' al-Sana'i' 7/210-211; Al-Jawhara al-Nira 3/303).
The Hanbalis, and Muhammad and Zufar among the Hanafis, hold that exception in acknowledgment of another kind is not valid, for exception is the turning away of the utterance, by the particle of exception, from what it would otherwise require. It is also said: it is the withdrawal of part of what the excluded-from encompassed, derived from "I turned (thanaytu) so-and-so from his opinion" when one turned him from an opinion he was resolved upon, and "I turned the rein of my mount" when one turned it from the direction it was heading; yet the other kind is not present in the speech.
When he mentions it, then, he has turned the speech neither from its direction nor from its course, and it is not an exception: it is called exception only by extension (tawassu'), and in reality it is a rectification (istidrak), and "illa" here means "but" (lakinna), as the people of the Arabic language say, among them Ibn Qutayba, and it is related from Sibawayh. Rectification comes only after denial (jahr), and that is why exception of another kind does not occur in the Book of Allah except after negation, affirmation not coming after it unless followed by a sentence.
This being established, there is no place for rectification in acknowledgment, for it is an affirmation of what is acknowledged: if the rectification is mentioned after it, it is void. If it is mentioned after a sentence, as in "He has against me a hundred dirhams, except a garment I have against him", he is then acknowledging one thing while claiming another: the acknowledgment is accepted and the claim falls, as if he had declared so explicitly without the word of exception.
Ibn Qudama (may Allah have mercy on him) said: as for the saying of the Most High, "They prostrated, except Iblis" (Surah Al-Baqara, 34), Iblis was among the angels, as shown by the fact that Allah, Most High, commanded prostration to none but them: had he not been of them, he would neither have been commanded to prostrate nor disobedient by abstaining; nor would Allah, Most High, have said of him "He defied his Lord's command" (Surah Al-Kahf, 50), nor "What prevented you from prostrating when I commanded you?" (Surah Al-A'raf, 12). And had he not been commanded to prostrate, why did Allah abase him, bring him down and drive him away, when Allah, Most High, commands prostration to none but the angels?
If they say: rather the command encompassed the angels and whoever was with them, so that Iblis entered into the command by being among them, we say: your argument has then fallen, for once he is within the excluded-from as one commanded to prostrate, his exception is of the same kind. Thus it is evident, to whoever is fair, that if one says "He has against me a thousand dirhams except a garment", the thousand binds him and the exception falls, as if he had said "He has against me a thousand dirhams, but I have a garment against him" (Al-Mughni 5/90, 914; Sharh al-Zarkashi 2/153-154).
Imam Ibn Hubayra (may Allah have mercy on him) said: they differed in the case of one who acknowledges something while excepting of another kind. Abu Hanifa said: if his exclusion is of what is established on the liability, like the measured, the weighed and the counted, in his statement "He has against me a thousand dirhams except a kaff of wheat, or except a hundred walnuts", the exception is valid; if his exclusion is of what is established on the liability only in its value, like the garment and the slave, the exception is not valid. Malik and al-Shafi'i said: exception of another kind is valid absolutely. As for Ahmad, the apparent meaning of his statement is that exception of another kind is not valid absolutely, except that his companions differed when one excludes a specified item from silver, or silver from a specified item: al-Khiraqi said it is valid, and Abu Bakr that it is not valid (Al-Ifsah 1/460).
The jurists differed in the case of one who acknowledges to so-and-so two thousand, for example, then says: "So-and-so has against me two thousand, no, rather one thousand". Does one thousand bind him, or two thousand, or three thousand?
The Hanafis according to the school, the Malikis, the Shafi'is and the Hanbalis hold that whoever says to another "So-and-so has against me a thousand, no, rather two thousand" has two thousand binding him, for his statement "So-and-so has against me a thousand dirhams" is an acknowledgment of a thousand, his statement "no" is a going back (ruju'), and his statement "rather" (bal) a rectification. Going back on an acknowledgment concerning people's rights is not valid, whereas rectification is valid: rectification therefore resembles exception of another kind, just as when he says to his wife "You are divorced once, no, rather twice": three repudiations occur (Bada'i' al-Sana'i' 7/212; Mukhtasar Ikhtilaf al-'Ulama 4/220; Tabyin al-Haqa'iq 5/23; Al-Taj wa-l-Iklil 4/238; Sharh Mukhtasar Khalil 6/96; Al-Sharh al-Kabir with the gloss of al-Dasuqi 5/101; Al-Umm 6/221; Al-Tanbih, p. 275; Sharh Muntaha al-Iradat 6/764; Matalib Uli al-Nuha 6/698).
Zufar, among the Hanafis (and this is their istihsan), holds that three thousand bind him, for the word "no, rather" is a going back on the first statement and the correction of a mistake by the second: the going back on the first is not valid and his acknowledgment of both sums is valid, so both bind him, as when the beneficiary of the acknowledgment differs, or the kinds of the two sums differ, as when he says "I owe so-and-so a thousand dirhams, no, rather a thousand dinars": both sums bind him, for what we have said.
And because acknowledgment is information, and the informer is of those upon whom error may fall in the amount or the description: as a rule the need arises to rectify an error in it, which is accepted if not suspect. It is not suspect when it is an increase over what is acknowledged, so it is accepted from him.
The Hanafis, the Shafi'is, and Ibn 'Abd al-Hakam and Ibn al-Mawwaz among the Malikis hold that suspending acknowledgment on the will (mashi'a) is not valid: if he says "He has against me a thousand, if Allah wills", he is not in a state of acknowledgment, for the will of Allah lifts the ruling of whatever is attached to it. Suspending the will of Allah (glorified and exalted be He) on the thousand being on the liability is something unknowable: if He wills, it is; if He does not will, it is not; acknowledgment is therefore not valid with such a possibility, especially as acknowledgment is information about an accomplished fact.
Most Malikis and the Hanbalis hold that if he suspends the acknowledgment on the will of Allah, glorified be He, saying "So-and-so has against me a hundred dinars, if Allah wills", this restriction by the will has no effect: a hundred dinars bind the acknowledger, and his statement, after the acknowledgment, "if Allah wills", does not discharge him of it. Ibn Sahnun even went so far as to mention that our companions agreed on this (Bada'i' al-Sana'i' 7/212; Mukhtasar Ikhtilaf al-'Ulama 4/220; Tabyin al-Haqa'iq 5/23).
They differed when he suspends the acknowledgment on the will of a person: the Hanafis, Malikis, Shafi'is and Hanbalis according to the school hold that if he suspends the acknowledgment on the will of so-and-so, it is not valid and nothing binds him, for he attached it to a condition the knowledge of which is possible, so it did not hold. The Qadi of the Hanbalis said: it is valid, for he appended to it what lifts it, so the acknowledgment stands without what lifts it, like the exclusion of the whole, as if he had said "if Allah wills".
The generality of jurists, Hanafis, Malikis, Shafi'is and Hanbalis according to the best-known view, state that subordinating acknowledgment to a condition is void: if he says "He has against me a thousand when Zayd arrives" or "if I enter the house", it is because acknowledgment is information about a previously accomplished fact, and the accomplished fact is not subordinated to a condition; only what has not yet come to be is subordinated to a condition, so as to become accomplished upon the occurrence of the condition.
It is also because it is an information oscillating between truth and falsehood: if true, it does not become false by the failure of the condition, and if false, it does not become true by its occurrence. There is thus no benefit in subordinating it, and subordinating acknowledgment to a condition has been annulled, unless the condition is a cause, such as the falling due of the term (hulul al-ajal) or the coming of tomorrow: subordination to such a condition is then valid, for what is meant thereby is to inform of the place of the term (mahall al-ajal). There is a view among the Hanbalis that subordinating acknowledgment to a condition is valid (Bada'i' al-Sana'i' 7/209; Tabyin al-Haqa'iq 5/15-16; Al-Jawhara al-Nira 3/291-292; Al-Lubab 1/460; Hashiyat Ibn 'Abidin 8/149-150; Al-Fatawa al-Hindiyya 4/162; Sharh al-Talqin 3/59 and 63; Al-Taj wa-l-Iklil 4/229; Al-Sharh al-Kabir with the gloss of al-Dasuqi 5/92; Tahrir al-Mukhtasar 4/308-309; Al-Hawi al-Kabir 7/72; Al-Bayan 13/429-430; Al-Ifsah 1/463; Al-Mughni 5/126; Kashshaf al-Qina' 6/588-589; Sharh Muntaha al-Iradat 6/737; Matalib Uli al-Nuha 6/673).
If he says "He has against me a thousand if I die", it is an acknowledgment according to the Hanafis, and not an acknowledgment according to the Shafi'is, for it is an acknowledgment suspended on death, so it is not an acknowledgment, as if he had suspended it on the arrival of Zayd. They differed when the insolvent (mu'isir) says "I owe so-and-so a thousand dirhams if Allah grants me wealth": according to the Shafi'is, in the soundest view, it is an acknowledgment, for means (al-yusar) is the appointed time for the insolvent's performance, and specifying the time of performance does not invalidate it, as if he said "He has against me a thousand until the beginning of the month". The Hanafis and some Shafi'is hold that it is a void acknowledgment, for it is an acknowledgment subordinated to a condition (Tabyin al-Haqa'iq 5/16; Al-Jawhara al-Nira 3/291-292; Al-Lubab 1/460; Majma' al-Damanat 2/783; Hashiyat Ibn 'Abidin 8/149-150; Al-Fatawa al-Hindiyya 4/162; Sharh al-Talqin 3/68; Al-Hawi al-Kabir 7/72; Al-Bayan 13/429-430; Al-Fatawa al-Fiqhiyya al-Kubra 3/120; Al-Mughni 5/127; Al-Mabdou' 10/322; Kashshaf al-Qina' 6/588-589; Sharh Muntaha al-Iradat 6/737; Matalib Uli al-Nuha 6/673).
The Hanafis state that whoever acknowledges a debt while reserving the option (khiyar) for himself has the acknowledgment binding upon him and the option is void. Its form: if he acknowledges an obligation (farida), a seizure (ghasb), a deposit (wadi'a) or a loan for use ('ariya), on condition of option for three [days], whether the beneficiary of the acknowledgment confirms or denies the option; for the option is for annulment (faskh), and acknowledgment does not accept annulment: it is information about a right established on the liability, and the condition of option amounts to going back, whereas acknowledgment concerning people's rights does not bear going back (Bada'i' al-Sana'i' 7/209; Al-Jawhara al-Nira 3/292-293; Al-Lubab 1/460; Durrar al-Hukkam 4/94).
The people of knowledge agreed on the validity of attaching a lineage (ilhqa al-nasab) and of the heirs' acknowledgment of an heir sharing with them in the inheritance, under conditions. Ibn al-Mundhir reported consensus on this, saying: they agreed that if a man says "this child is my son" and the child has no known lineage to be attached to, his lineage is established by his acknowledgment. And they agreed that if an adult man says "this is my father" and the adult confirms him, and the acknowledger has no known lineage as his son, the lineage is established provided the like of one can beget the like of the other (Al-Ijma' of Ibn al-Mundhir 324-325).
The conditions are the following:
Ibn Qudama (may Allah have mercy on him) said: section on the conditions of acknowledgment of lineage. It is necessarily either acknowledgment for oneself alone, or for oneself and another. If one acknowledges for oneself, as in acknowledging a child, four conditions govern the establishment of lineage:
If it is an acknowledgment for oneself and another, as in acknowledging a brother, the four conditions apply together with a fifth: that the acknowledger be all the heirs. If the acknowledger is a husband or wife with no heir besides them, lineage is not established by their acknowledgment, for the acknowledger does not inherit the whole of the property. If the imam acknowledges it together with them, lineage is established, for he stands in the place of the Muslims in sharing with the heir and taking the remainder.
If the heir is a daughter, a sister, a mother, or one entitled to a fixed share who inherits the whole of the property by share and radd (the return of the surplus), lineage is established by his word as with the son, for he inherits the whole of the property. According to al-Shafi'i, lineage is not established by his word, for he does not accept the radd and assigns the remainder to the treasury (bayt al-mal).
Section: if one of the heirs is not legally responsible, like the child or the insane, and the responsible one acknowledges a third brother, lineage is not established by his acknowledgment, for he does not hold the whole of the inheritance. If the child attains puberty or the insane regains his reason and they also acknowledge, the lineage is established by the agreement of all the heirs; if they deny, it is not established. If they both die before becoming responsible, the lineage of the acknowledged is established, for he had the acknowledgment of all the heirs, the acknowledged having become all the heirs.
If the two heirs are adult and of sound mind, one acknowledges and the other denies, then the denier dies and is inherited by the acknowledger: the lineage of the acknowledged is established, for the acknowledged has become all the heirs, as if he had acknowledged him from the outset after his brother's death, or as if his partner in the inheritance were not legally responsible.
There is another view: the lineage is not established, for some of the heirs denied it, so it is not established as if he had not died, unlike the case where his partner is not legally responsible, for no heir denied it. This is when the acknowledger holds the whole of the inheritance after the deceased. If the deceased has another heir, or one sharing in the inheritance, lineage is not established by the word of the one remaining of the two, in one view, for he is not all the heirs, and the heir who died second stands in his place: if the acknowledgment of the one remaining agrees, lineage is established; if he opposes it, it is not established, as with the deceased.
If he leaves two sons, one acknowledges a brother and the other denies him, then the denier dies leaving a son who acknowledges what his father had denied: the lineage is established by the acknowledgment of all the heirs; it is possible that it is not established because of the denial of the deceased (Al-Mughni 5/116-117).
Imam al-Kasani said: as for acknowledgment of lineage, it is acknowledgment of an heir. It is of two kinds: the man's acknowledgment of an heir, and the heir's acknowledgment of his heir; two rulings attach to each: the ruling of lineage and that of inheritance. As for acknowledgment of an heir, the conditions for the valid establishment of lineage are:
The validity of the acknowledger is not required for the validity of his acknowledgment of lineage, which is valid from the healthy and the sick alike, for illness is not in itself a hindrance; [an acknowledgment can only fail] through the attachment of another's right or of suspicion (tuhma), and all of that is nonexistent: the attachment is evidently absent, for attachment is not known in one of unknown lineage. Likewise the meaning of suspicion, for inheritance is not among the necessary consequences of lineage: deprivation of inheritance has causes that do not touch lineage, such as killing, slavery, difference of religion or of abode. And Allah knows best.
On this basis, a man's acknowledgment is valid regarding five persons: his two parents, his child, his wife and his client (mawla); a woman's acknowledgment is valid regarding four: her two parents, her husband and her client. It is not valid regarding the child, for in acknowledging those there is no imposition of the lineage of one person upon another (Bada'i' al-Sana'i' 7/228).
Imam al-'Imrani said: acknowledgment of lineage is permitted and lineage is established by it. Some people held that lineage is not established by acknowledgment. Our proof: what is reported, that Sa'd b. Abi Waqqas and Abd b. Zam'a disputed over the son of the slave woman of Zam'a. Abd b. Zam'a said: "He is my brother and the son of Walida, my father's slave woman: he was born on his bed". The Prophet (peace and blessings of Allah be upon him) said:
The child belongs to the bed, and the adulterer gets only the stoneReported by al-Bukhari (1947) and Muslim (1457)
The Prophet thus judged in favour of Abd on the basis of acknowledgment. This being established, the acknowledger cannot but acknowledge lineage for himself or for another. If he acknowledges for himself, by claiming the sonship of another, and the acknowledged is a child or an insane person, his lineage is not established except by three conditions:
The third condition: that the acknowledged be able to be the acknowledger's son: one who is fifteen years old may acknowledge as his son one who is five years old or less. But if he acknowledges as his son one who is seven years old or more, the validity of his acknowledgment is not pronounced, for we are certain of his lying. This being established: if a man acknowledges the sonship of a child or an insane person of unknown lineage who may be his son, then the child attains puberty or the insane regains his reason and denies his lineage from the acknowledger, and the acknowledger does not confirm his denial, his denial is not heard, for his lineage has been established from the acknowledger and is not annulled by his denial, like one who claims ownership of a child in his possession whose free status is unknown, then the child grows up and denies enslavement: his denial is not accepted.
If the acknowledger confirms that he is not his son, does his lineage fall away? There are two views: one, it falls away, as if he had acknowledged money which the beneficiary denied and the acknowledger confirmed the denial; the other, it does not fall away, and this is the sounder view, for once lineage is established it does not fall away, like lineage established through the marital bed. If the acknowledged is adult and of sound mind, his lineage is not established except by the aforementioned conditions, with in addition a fourth: that the acknowledged confirm him, for his confirmation is possible and is therefore taken into account, unlike the child and the insane (Al-Bayan 13/475-476).
The ruling on a woman's acknowledgment of a son: the generality of jurists, Hanafis, Malikis, Shafi'is according to the soundest view, and Hanbalis according to a view, state that if a woman claims a child of unknown lineage, her word is not accepted except with evidence (bayyina), and that she differs from the man in the acknowledgment of lineage, in order to safeguard the marital bed and the genealogies. If a woman claims an unknown child, acknowledgment is not accepted from her, and the rulings of motherhood, filiation and inheritance do not apply between the two of them, for that carries the imposition of lineage upon another, except with evidence: namely the husband's confirmation of her, or the testimony of a midwife to the birth.
Ibn al-Mundhir reported consensus on this, saying: they agreed that if the woman says "this is my son", it is not accepted except with evidence, and she is not like the man. Ishaq alone said that a woman's acknowledgment is valid (Al-Ijma' 326). He also said: all those whose reports I retain among the people of knowledge agreed that if a woman claims a foundling (laqit) and says that he is her son, her word is not accepted. Such is the statement of al-Shafi'i, transmitted by al-Muzani, as well as that of the people of opinion (ashab al-ra'y), among them Musa, and likewise al-Thawri, Yahya b. Adam and Abu Thawr. And if a woman finds a child and says "he is my son by this husband of mine", and the husband confirms her, he is their son, according to Abu Thawr and the people of opinion, and so we say (Al-Awsat 7/223; Al-Ijma' 574).
Ibn 'Arafa said: the mother's attaching of a child is an idle word. In the Nawazil of Sahnun, in the book of attaching (kitab al-istilhaq), concerning a man who had a wife and a child, when the woman claims that the boy is her son by another husband and the man claims that the boy is his son by another woman: the boy is attached to the husband and the woman's word is not accepted.
Imam Ibn Rushd the grandfather said: I know of no disagreement that the woman may not attach her child, unlike the father, for the child is ascribed to his father, not to his mother; were it not for what the Law has made decisive, his lineage to his mother would take precedence, for she is closer to him than his father: the two shared the water, while to her alone belong pregnancy and birth (Al-Bayan wa-l-Tahsil 14/278-279; Al-Dhakhira 9/314; Sharh Mukhtasar Khalil 6/101; Manh al-Jalil 6/473). This is when the woman has a husband; if she has no husband, it is valid.
Ibn Qudama (may Allah have mercy on him) said: if the woman acknowledges a child while having neither husband nor kin, her acknowledgment is accepted. If she has a husband, is her acknowledgment accepted? On two narrations: one, it is not accepted, for it carries the imposition of the child's lineage upon her husband who did not acknowledge it, or the attaching of shame to him through his wife's bearing a child by another. The other: it is accepted, for she is an individual who acknowledged a child that may be hers, so it is accepted as with the man. Ahmad said, in the narration of Ibn Mansur, concerning a woman who claimed a child: if she has brothers or known kin, it is necessary that it be established that he is her son; if she has none to gainsay her, who would bar her from him? This is because, when she has a family, her giving birth is not hidden from them: as soon as she claims a child they do not know, the appearance is that she lies; yet her claim may be accepted absolutely, for lineage is safeguarded, so that she resembles the man.
Section: if a woman comes from the land of the Romans (the Byzantines) with a child and a man acknowledges him, the child is attached to him where possibility exists and there is no contestation, for he may have entered their land, or she may have entered the land of Islam and he had relations with her, and lineage is safeguarded for its establishment. That is why, if a man's wife gives birth while he has been absent from her for twenty years of absence, the child is attached to him, even if no coming to her is known for him, nor for her a departure from her land (Al-Mughni 5/120).
Some Malikis, some Shafi'is and the Hanbalis according to the school hold that if the woman claims a child, it is accepted from her and her acknowledgment of him is valid, but the husband is not attached to the child, based on the hadith of Abu Hurayra, who heard the Messenger of Allah (peace and blessings be upon him) say:
Two women had their two sons with them. The wolf came and carried off the son of one of them. She said to her companion: it is your son he carried off, and the other said: it is your son he carried off. They referred the matter to Dawud (peace be upon him), who judged in favour of the elder. They then went out to Sulayman b. Dawud (peace be upon them both) and informed him. He said: Bring me a knife, I will cut him between the two of them. The younger said: Do not do it, may Allah have mercy on you, he is her son. So he judged in favour of the younger.Abu Hurayra said: By Allah, I had never heard of a knife (sikkin) before that day; we used to say only midya (small knife). Reported by al-Bukhari (3687) and Muslim (1720)
Ibn Qudama (may Allah have mercy on him) said: if the claimant is a woman, this differs from Ahmad (may Allah have mercy on him): it is reported that her claim is accepted and the lineage is attached to her, for she is one of the two parents, so that lineage is established by her claim as with the father; and because he may be of her as the man's child is of him, indeed more so, for she brings him from a husband and from intercourse under a mistaken impression (shubha), and her child is attached to her even when born of fornication, which is not so with the man. And because of the story of Dawud and Sulayman (peace be upon them both), when two women, each with a son, referred the matter to them and the wolf carried off one of the two: each claimed the one who remained, Dawud judged for the elder, and Sulayman judged for the other on the mere claim of the two. This is the view of some of the companions of al-Shafi'i. According to this narration, the child is attached to her without her husband, for the lineage of a child cannot be attached to one who did not acknowledge him; likewise, if a man claims a lineage, he is not attached to his wife.
If it is said: the man may have a child by another woman or by his slave girl, whereas the woman may only marry her husband and may only be touched by him, we say: she may give birth from intercourse under a mistaken impression or otherwise; and if the child may have existed before this husband married her, he may be by another husband.
If it is said: acknowledgment of lineage is accepted from the husband only for the benefit of warding off shame from the boy and protecting him from being ascribed to being a child of fornication, and that is not achieved by attaching his lineage to the woman, while attaching him to her without her husband exposes him and her to shame, we say: rather we accepted her claim because she claims a right which no one contests and by which no one is harmed, so that her word is accepted therein like the claim to money, and that is realized in the woman's claim.
The second narration: if she has a husband, lineage is not established by her claim, for it leads to imposing lineage upon her husband without his acknowledgment or consent, or to his wife having had intercourse of fornication or under a mistaken impression, which harms him; her word is therefore not accepted in what brings harm upon him. If she has no husband, her claim is accepted for the absence of this harm, and this is also a view of the companions of al-Shafi'i.
The third narration, transmitted by al-Kawsaj from Ahmad: the woman who claims a child, if she has brothers or known kin, is only believed with evidence; if she has none to gainsay her, no oath is imposed between her and him, for if she has family and known kin, her giving birth is not hidden from them, and they would be hurt by the attaching of lineage to her, because of the reproach incurred by her bearing a child from other than her husband; and it is not so if she has no family. It is also possible that lineage is not established at all by her claim. This is the view of al-Thawri, al-Shafi'i, Abu Thawr and the people of opinion. Ibn al-Mundhir said: all those whose reports I retain among the people of knowledge agreed that lineage is not established by the woman's claim, for she is able to produce the evidence of the birth, so that her word alone is not accepted, just as if her husband made his divorcing her conditional on her giving birth. Our argument: she is one of the two parents and thus resembles the father; the possibility of evidence does not prevent the acceptance of the word, as with the man, for whom the evidence is possible that this one was born on his bed (Al-Mughni 6/44-45).
Imam al-'Imrani said: if the woman acknowledges a child that may be hers, there are three views: one, it is accepted; the second, it is not accepted; the third: if she is not married (ghayr firash), it is accepted, and if she is married (firash), it is not accepted. These views have already been set out with their causes in the chapter on the foundling (laqit). Ibn al-Laban said: whoever accepts the woman's acknowledgment of a child accepts her heirs' acknowledgment of her child as well, and whoever does not accept her acknowledgment does not accept her heirs' acknowledgment, unless her husband confirms them. He said: likewise, whoever accepts the woman's acknowledgment accepts the acknowledgment concerning the mother, and whoever does not accept the woman's acknowledgment does not accept the acknowledgment concerning the mother, because of the possibility of producing the evidence (Al-Bayan 13/482).