Islamic Fiqh > Endowments (waqf) and property > Luqata: the lost item found > The laqit who is himself a non-Muslim
Contents
Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
This continuation of the chapter on the laqit (the foundling) gathers the rulings concerning the religious status of the laqit, his freedom, his inheritance, his maintenance, the claiming of his lineage by a man, a non-Muslim, two persons, a woman or two women, and finally the validity of the Islam of a minor who embraces it independently of his parents. The positions of the four schools are set out and compared, supported by their classical references and by the reports narrated from the Prophet and the Companions.
The Hanafis said: the picking up of the Muslim [foundling] by a non-Muslim is valid; if a Muslim and a non-Muslim find him together and dispute over him, judgment is given for the Muslim, because that is more beneficial for the laqit, since the Muslim teaches him the rulings of Islam; and because the laqit is deemed a Muslim, the Muslim is more entitled to his protection. This is so if the child cannot yet discern religions; otherwise he is taken away from the non-Muslim even if the non-Muslim alone was the one who picked him up (Al-Durr al-Mukhtar with Ibn Abidin's hashiya, 4/271).
As for the apostate, his picking up is valid as well according to the Hanafis. Ibn Nujaym (may Allah have mercy on him) said: "I have not seen any ruling stated about the apostate picking up a laqit or a luqta; the apparent is that our shaykhs did not restrict the one who picks up because the ruling, with us, remained unrestricted" (Al-Bahr al-Ra'iq, 5/162).
Second case: the laqit who is a non-Muslim. The majority of the Hanafi scholars, the Malikis (as understood from their texts), the Shafi'is and the Hanbalis stated explicitly that if the laqit is a non-Muslim or deemed a non-Muslim, it is permitted for the non-Muslim to pick him up, and he remains in his care, for his guardianship over him is established, since the non-Muslim has guardianship over whoever is of his religion, for:
"Those who disbelieved are allies of one another"
Surah Al-Anfal, 73
(Al-Bahr al-Ra'iq, 5/162; Ibn Abidin's hashiya, 4/277-278; Al-Taj wa-l-Iklil, 5/49; Sharh Mukhtasar Khalil, 7/134; Al-Sharh al-kabir with al-Dasuqi's hashiya, 5/538; Tabhir al-Mukhtasar, 5/48; Al-Bayan, 8/18; Rawdat al-talibin, 4/226; Al-Nihm al-Wahhaj, 6/52; Mughni al-muhtaj, 3/524; Tuhfat al-muhtaj, 7/650; Al-Mughni, 6/41; Al-Kafi, 2/365; Kashshaf al-Qina', 4/279; Sharh Muntaha al-iradat, 4/316.)
The jurists differed about the fasiq (a flagrant sinner) who picks up a Muslim child: does he remain in his care, or is the child taken from him? The Shafi'is and the Hanbalis in the madhhab require the one who picks up to be upright ('adl), even if only outwardly; the fasiq's picking up is therefore not valid and the child is taken from him, because custody (hadana) is a guardianship and the fasiq is not among those who hold guardianship; so the child is taken from him, because the only thing entrusted regarding the laqit is guardianship, and the fasiq has no guardianship.
Ibn Qudama (may Allah have mercy on him) explained how the laqit differs from the luqta (found property) in three respects (Al-Mughni, 6/40; Al-Bayan, 8/18; Rawdat al-talibin, 4/226; Al-Nihm al-Wahhaj, 6/53; Mughni al-muhtaj, 3/525; Kashshaf al-Qina', 4/278-279):
According to the apparent meaning of al-Khiraqi's statement, however, the child is not taken from him: guardianship is established for him by his picking him up and by his priority over him, and the child can be protected in his hands by establishing testimony concerning him and by appointing a trustworthy man who supervises him and makes his situation known, so that people know he is a laqit; he is thereby protected without his guardianship ceasing, which combines both rights as in the case of the luqta, just as if the guardian were suspected of treachery. What has been mentioned in favor of preferring the luqta's rule can be countered: the laqit is exposed, uncovered, and treachery toward him cannot be concealed, whereas the luqta is hidden, concealed, and treachery may creep into it unnoticed; part of the luqta can be taken, diminished or substituted, which is impossible with the laqit; and property is the site of treachery, and souls have motives to reach and seize it, unlike what concerns the child.
The Hanafis, for their part, held the fasiq's picking up to be valid: neither Islam nor uprightness is required of the one who picks up (Al-Bahr al-Ra'iq, 5/162; Al-Durr al-Mukhtar with Ibn Abidin's hashiya, 4/271).
The laqit is found either in the abode of Islam (dar al-islam) or in the abode of disbelief. In the abode of Islam he is of two kinds: either found in one of the villages of the protected people (dhimmis), in a synagogue or in a church, or found in a land of the Muslims.
The Hanafis said: if the laqit is found in a village of dhimmis subject to the rule of Islam in which no Muslim lives, or in a synagogue or a church, he is judged a dhimmi, out of deference to the apparent, because whatever is found in a place is in the hands of its people and under their control, and the laqit in the hands and control of a dhimmi is a dhimmi; this is when the finder is a dhimmi, with no disagreement among them. If the finder is a Muslim, the madhhab contains several statements. The first, which is the original narration and the sound position of the madhhab, is that he is likewise judged a non-Muslim, giving precedence to the place, because the place precedes the finder's hand and the ruling belongs to the one who precedes; for it is apparent that the people of the pact place their children in the Muslims' mosques, while the Muslims do not place theirs in synagogues and churches, and judging by the apparent is obligatory when the reality cannot be known. And because the laqit is in the ruling of an unowned thing: whoever's hand precedes him acquires him, and the ruling belongs to that hand, since the place has no hand that counts; do you not see that an unowned thing is acquired by the hand and not by the place?
The second narration, which is the narration of Ibn Sima'a from Muhammad: the finder's condition is considered; if the finder in those places is a Muslim, the laqit is a Muslim, and if the finder is a dhimmi, the laqit is a dhimmi, because the hand is stronger than the place.
The third narration: dress and mark (sima) are considered; if he wears the mark of the Muslims he is a Muslim, otherwise he is a non-Muslim. The basis of this is Allah's statement:
"The criminals will be known by their marks"
Surah Ar-Rahman, 41
If he has a carved pendant around his neck and wears a brocade garment, the apparent is that he is one of the Christians' children, so his Islam is not judged for him; otherwise his Islam is judged. According to one narration, his Islam is judged out of regard for his young age (Al-Mabsut, 17/130-131; Bada'i' al-Sana'i', 6/198; Al-Hidaya, 2/173; Al-Ikhtiyar, 3/36; Al-Jawhara al-nira, 4/183-184; Al-'Inaya, 8/191; Al-Bahr al-Ra'iq, 5/158; Al-Lubab, 1/659).
The Malikis said: if the laqit is found in the lands of the Muslims, he is judged a Muslim without disagreement, because that is the origin and the norm, whether a Muslim or a non-Muslim picked him up. Likewise if he is found in a village with only one, two or three Muslim houses: he is judged a Muslim by the predominance of Islam, on condition that the one who picked him up is a Muslim; if a dhimmi picked him up, he is judged a non-Muslim according to the mashhur, the house being like two houses according to the apparent of the Mudawwana. If there are more than three houses, he is judged a Muslim with certainty even if a non-Muslim picked him up; likewise if the Muslims are equal in number, more numerous, or close to equal: the laqit is carried to Islam even if a polytheist picked him up. If he is found in a village of polytheism, or in a place belonging to them such as a synagogue or a church, even if it lies among villages of Muslims, he is a polytheist, whether a Muslim or a non-Muslim picked him up, by the predominance of the land: the ruling belongs to the prevailing; this is the statement of Ibn al-Qasim. It has also been said: if a Muslim picked him up he is a Muslim, and if a non-Muslim picked him up he is a non-Muslim (Mawahib al-Jalil, pp. 43-44; Al-Taj wa-l-Iklil, 5/47; Sharh Mukhtasar Khalil, 7/132; Al-Sharh al-kabir with al-Dasuqi's hashiya, 5/536; Al-Sharh al-saghir with al-Sawi's hashiya, 9/280-281).
The Shafi'is said: if a laqit is found in the abode of Islam, whether the Muslims inhabit it although it contains dhimmis or treaty people, or it is a land the Muslims conquered and which was left in the hands of the disbelievers by treaty even if they do not own it, or a land the Muslims conceded to disbelievers after conquering it by force, in return for the jizya, or a land the Muslims inhabited and from which the disbelievers then expelled them: if a Muslim is found in it in these four situations, that laqit can be the child of the Muslim, even if the Muslim is a ransomed captive, a merchant, a traveler or a governor, and his Islam is judged in the four cases by the predominance of Islam, according to the following saying:
"Islam prevails and nothing prevails over it"Saying of the Prophet (peace be upon him)
But if all the people of the village are disbelievers after expelling the Muslims from it, he is a non-Muslim according to the sound view, because it cannot be imagined that he is the son of a Muslim. It has been said: he is a Muslim, because the land is a land of Islam, and it can be imagined that a Muslim who concealed himself remained in it and that this is his son. And if the laqit is found in the abode of Islam in which there is no polytheist, such as the Haram, he is a Muslim outwardly and inwardly; otherwise he is so in appearance only (Al-Bayan, 8/12, 14; Rawdat al-talibin, 4/239-240; Al-Nihm al-Wahhaj, 6/65; Mughni al-muhtaj, 3/529-530; Tuhfat al-muhtaj, 7/663-665; Nihayat al-muhtaj, 5/520-521; Al-Dibaj, 2/571-572).
The Hanbalis said: if the laqit is found in the abode of Islam, in a town all of whose people are dhimmis, he is a non-Muslim, because giving predominance to the ruling of Islam only occurs when there is a possibility, and here there is no Muslim in it whose being from him can be imagined. The Qadi (Abu Ya'la) and Ibn 'Aqil said: he is a Muslim, because the land belongs to the Muslims, and because it can be imagined that he is from a Muslim who conceals his faith.
The text continues: if the laqit is found in a land of Islam all of whose inhabitants are dhimmis and which contains a wilderness (barriyya), he is judged a Muslim if it is the wilderness of our land, or a wilderness to which no one has access; but he is not, if it is the wilderness of the land of war that no Muslim frequents. And the child of a dhimmi woman from fornication is not a Muslim.
As for the laqit found in the abode of disbelief and polytheism, the state of that land is one of two things. The first: no Muslim is found in it; if a non-Muslim picks him up, the laqit is a non-Muslim by the agreement of the four schools. If the one who picks him up is a Muslim, he is a non-Muslim as well according to the majority of the jurists: the Hanafis according to their sound position, the Malikis according to the mashhur, the Shafi'is and the Hanbalis. According to a statement of the Hanafis and the position opposed to the mashhur among the Malikis: if a Muslim picked him up, he is a Muslim, giving precedence to the hand.
The second: one or more Muslims are present in the disbelievers' land. The jurists differed about a laqit found there: is his Islam or his disbelief judged by the predominance of the land? The sound position of the Hanafis and the mashhur of the Malikis is that he is judged a non-Muslim by the predominance of the land. According to a statement of the Hanafis, the position opposed to the mashhur among the Malikis, the most correct of the Shafi'is and the Hanbali madhhab: if one or more Muslims are found in the land of disbelief, he is judged a Muslim by the predominance of Islam.
The Hanafis said: if the laqit is found in the land of the disbelievers, he is a non-Muslim, out of deference to the apparent; this is when the finder is a dhimmi, without disagreement among them. If the finder is a Muslim, the madhhab contains several statements, the soundest of which is that he is judged a non-Muslim by the predominance of the place, because the place precedes the finder's hand and the ruling belongs to the one who precedes. The second narration, that of Ibn Sima'a from Muhammad: the finder is considered; if the finder is a Muslim, the laqit is a Muslim; if he is a dhimmi, the laqit is a dhimmi, because the hand is stronger than the place. The third: dress and mark are considered: if he wears the mark of the Muslims he is a Muslim, otherwise a non-Muslim, based on "The criminals will be known by their marks" (Surah Ar-Rahman, 41); if he has a carved pendant around his neck and a brocade garment, the apparent is that he is one of the Christians' children, so his Islam is not judged for him, otherwise his Islam is judged; and according to one narration, his Islam is judged out of regard for his young age. It is stated in Al-Durr al-Mukhtar: "The issue is fourfold: either a Muslim finds him in our land, so he is a Muslim; or a disbeliever in their land, so he is a disbeliever; or a disbeliever in our land, or the reverse, that is a Muslim in their land; and according to the apparent of the narration, the place is considered for its precedence" (Al-Durr al-Mukhtar with Ibn Abidin's hashiya, 4/273; see Al-Mabsut, 17/130-131; Bada'i' al-Sana'i', 6/198; Al-Hidaya, 2/173; Al-Ikhtiyar, 3/36; Al-Jawhara al-nira, 4/183-184; Al-'Inaya, 8/191; Al-Bahr al-Ra'iq, 5/158; Al-Lubab, 1/659).
The Malikis said: if the laqit is found in the land of polytheism, in a village of polytheism, or in a place belonging to them such as a synagogue or a church, even if it lies among villages of Muslims, he is a polytheist, whether a Muslim or a non-Muslim picked him up, by the predominance of the land: the ruling belongs to the prevailing; this is the statement of Ibn al-Qasim. It has been said: if a Muslim picked him up he is a Muslim, and if a non-Muslim picked him up he is a non-Muslim (Mawahib al-Jalil, pp. 43-44; Al-Taj wa-l-Iklil, 5/47; Sharh Mukhtasar Khalil, 7/132; Al-Sharh al-kabir with al-Dasuqi's hashiya, 5/536; Al-Sharh al-saghir with al-Sawi's hashiya, 9/280-281).
The Shafi'is said: if the laqit is found in the land of disbelievers, which is the land of war, that laqit is a non-Muslim if no Muslim inhabits it, because Islam only prevails when there is a possibility, and there is no possibility here, since there is no Muslim to whom he could be attributed. Then, if the people of the place are several confessions, he is assigned to the one closest to Islam. If a Muslim inhabits it, as a captive or a merchant, so that he could be his son, he is a Muslim according to the most correct view, by the predominance of Islam; if that Muslim disclaims him, his disclaimer is accepted regarding the lineage, but not regarding his Islam. According to the second view: he is a non-Muslim by the predominance of the land, because he may be the son of a Muslim or of a disbeliever, and disbelief prevailed because the land is a land of disbelief in which the disbelievers are more numerous; and the apparent in the captive is that he is not able to have intercourse by marriage or otherwise.
The Hanbalis detailed: the laqit found in the abode of disbelief is in one of two situations. The first: no Muslim is found in the land, and its laqit is a non-Muslim, because the land is theirs and they are of it. The second: many Muslims are found in it, and the laqit is judged a Muslim by the predominance of Islam. If the Muslims in it are few, such as merchants and captives, there are two aspects, the sounder of which is that he is judged a non-Muslim by the predominance of the land; the second aspect: he is judged a Muslim by the predominance of Islam (Al-Mughni, 6/35-36; Kashshaf al-Qina', 4/276; Sharh Muntaha al-iradat, 4/313; Matalib uli al-nuhha, 4/245-246).
Imam Ibn al-Mundhir (may Allah have mercy on him) said: "The generality of the people of knowledge agreed that the laqit is free; we transmitted this view from Omar ibn al-Khattab and Ali ibn Abi Talib (may Allah be pleased with them both), and it was held by Omar ibn Abd al-Aziz, al-Sha'bi, al-Nakha'i, al-Hakam, Hammad, Malik, al-Thawri, al-Shafi'i and Ishaq, and by whoever followed them of the people of knowledge" (Al-Ishraf, 6/358; Al-Ijma', 570).
Imam Ibn Qudama (may Allah have mercy on him) said: the laqit is free according to the view of the generality of the people of knowledge, except al-Nakha'i, who said: if he was picked up for the public interest he is free, but if the picker intended to enslave him, he is his. This is an isolated view, rejected by the successors and the scholars, and untenable upon examination: the origin of the children of Adam is freedom, for Allah created Adam and his offspring free; slavery is only accidental, and if that accident is not known, the person takes the ruling of the origin (Al-Mughni, 6/35).
The jurists of the four schools agreed that the laqit is free, as has come, and that his wala' (right of clientage) belongs to the Muslims, not to the one who picked him up: his inheritance therefore goes to the Muslims, and his pecuniary liability falls upon them through the bayt al-mal (the public treasury).
Ibn Qudama (may Allah have mercy on him) said: "His wala' belongs to the rest of the Muslims, meaning that they inherit from him, for the laqit is free in origin and no wala' lies upon him; the Muslims inherit from him because they were entrusted with every wealth that has no owner, and because they inherit the wealth of one who has no heir besides the laqit, so likewise the laqit"; and this is the view of Malik, al-Shafi'i and most of the people of knowledge (Al-Mughni, 6/39; Al-Kafi, 2/363).
Shurayh and Ishaq said: the wala' belongs to the one who picked him up, based on what Wathila ibn al-Asqa' narrated:
"A woman inherits from three: her freed slave, her laqit, and her child over whom she declared li'an (mutual imprecation)"Reported by Abu Dawud and al-Tirmidhi, who declared it hasan
Omar (may Allah be pleased with him) said to Abu Jamila concerning his luqta: "He is free; the wala' is yours, and his maintenance is upon us." Our evidence, however, is the Prophet's saying:
"The wala' belongs only to the one who grants freedom"Saying of the Prophet (peace be upon him)
And because no slavery is established over him nor over his forefathers, no wala' is established over him, just as his lineage is not established except by what is known; if he is the son of two free men, no wala' lies upon him; and if he is the son of two manumitters, no wala' is established over him for anyone besides their manumitters. The hadith of Wathila is not established, as Ibn al-Mundhir said. As for Omar's report, Ibn al-Mundhir said: Abu Jamila is an unknown man whose report constitutes no proof; and it can be understood that Omar (may Allah be pleased with him), by his words "the wala' is yours", meant "the wilaya is yours", that is, the care and protection of the child: he mentioned it right after his sponsor (the one who vouched for him) said of him that he was a righteous man, which entails entrusting the guardianship to him because he is trustworthy, without the inheritance.
Once this is established, the laqit, in inheritance, has the ruling of one whose lineage is known but whose family has died out: if he has no heir, his wealth is given to the bayt al-mal. If he has a wife, she takes the fourth and the rest goes to the bayt al-mal; if it is a woman whose husband exists, he takes the half and the rest goes to the bayt al-mal; and if he has a daughter, or a distant relative (dhawu rahm) such as a granddaughter, she takes all the wealth, because the radd (the return to the relatives) precedes the bayt al-mal (Al-Mughni, 6/39; Al-Kafi, 2/363).
If he had well-off parents and wealth from which his maintenance should have been taken, then the maintenance of one whose parents are unknown should all the more be taken from the wealth (of the bayt al-mal) (Al-Hidaya, 2/174; Al-Ikhtiyar, 3/36; Al-Lubab, 1/659; Al-Taj wa-l-Iklil, 5/45; Al-Sharh al-kabir with al-Dasuqi's hashiya, 5/534-535; Tabhir al-Mukhtasar, 5/44-45; Al-Hawi al-kabir, 8/37; Al-Bayan, 8/14; Al-Nihm al-Wahhaj, 6/58-59; Mughni al-muhtaj, 3/527; Al-Dibaj, 2/570; Al-Mughni, 6/38; Al-Ifsah, 2/66).
Second situation: no wealth is found with him. It takes two forms. The first: wealth exists in the bayt al-mal. The jurists of the four schools agreed that if the laqit has no wealth, and nothing was donated, given as sadaqa or endowed for him, his maintenance is obligatory upon the bayt al-mal of the Muslims when it contains wealth, based on what Imam Malik narrated from Ibn Shihab, from Sunayn, that is Abu Jamila, a man of the tribe of Sulaym, who found an exposed child in the time of Omar ibn al-Khattab: "I came to Omar ibn al-Khattab, and he said: what made you take this little creature? I said: I found her lost and took her. The man who vouched for him said: O Commander of the Faithful, he is a righteous man. Omar asked: is that so? He said: yes. Omar ibn al-Khattab then said: go, he is free; the wala' is yours and his maintenance is upon us." (Reported by Malik in the Muwatta, 2/738, no. 1417.)
And because if an adult in need has his maintenance obligatory upon the bayt al-mal, the laqit is more entitled to it (Al-Hidaya, 2/174; Al-Ikhtiyar, 3/36; Al-Lubab, 1/659; Al-Taj wa-l-Iklil, 5/45; Al-Sharh al-kabir with al-Dasuqi's hashiya, 5/534-535; Tabhir al-Mukhtasar, 5/44-45; Al-Hawi al-kabir, 8/37; Al-Bayan, 8/16; Al-Nihm al-Wahhaj, 6/58-59; Mughni al-muhtaj, 3/527; Al-Dibaj, 2/570; Al-Mughni, 6/37-38; Al-Ifsah, 2/66; Kashshaf al-Qina', 4/277; Matalib uli al-nuhha, 4/344).
Maintaining the laqit belongs to equity and benevolence; it is reviving one who is inviolable and rescuing him from destruction, so it becomes obligatory like the rescue of the drowning man. The one who maintained him does not recover what he spent, for it is a collective obligation (fard kifaya): once some fulfill it, it falls away from the rest once the purpose is achieved; if all abandon it, all are sinful; and it is obligatory as an act of solidarity, like the maintenance of kin and the hospitality due to a guest (Mukhtasar Ikhtilaf al-'ulama', 4/350-351; Al-Tamhid, 3/128-129; Al-Kafi, 1/484; Tafsir al-Qurtubi, 9/135; Al-Taj wa-l-Iklil, 5/45; Sharh Mukhtasar Khalil, 7/131; Al-Sharh al-kabir with al-Dasuqi's hashiya, 5/534-535; Tabhir al-Mukhtasar, 5/44-45; Al-Ishraf, 6/360; Al-Mughni, 6/38; Kashshaf al-Qina', 4/277; Matalib uli al-nuhha, 4/344).
The Hanafis said: if he claims, after reaching majority, that he spent such and such on him, and the laqit confirms him in that, he recovers it from him; if the laqit denies it, the laqit's word prevails, and the claimant must produce evidence, for he claims a debt for himself against him while he is not trustworthy in that; he is only trustworthy in what removes liability from himself, which is why he must establish his claim by testimony. The testimony of the laqit once he has become discerning is admissible if he is upright: he is a free Muslim, so his testimony is accepted in all matters once his uprightness becomes apparent (Al-Mabsut, 10/211).
Second case: spending on him seeking the reward, with claim of reimbursement without the ruler's permission. The jurists differed: can the one who picked him up claim reimbursement without the ruler's permission? The majority of the jurists, the Hanafis, the Malikis, the Shafi'is and the Hanbalis according to a statement, hold that he recovers nothing from the one who picked him up, as if he had acted charitably: he is not legally compelled to what he did; the volunteer is one who remains free, not compelled to spend; likewise one who maintains a child whose father is known, without the father's permission, acts voluntarily; and so it is for the one who maintains the laqit. Indeed, picking him up establishes for him a right to the extent of the laqit's benefit, namely his protection and upbringing, without establishing for him a binding guardianship over anything owed, because that does not benefit him; there is between them no cause establishing guardianship, which is why he cannot claim the maintenance from him; and the usual state of people is to act charitably in this manner without seeking reimbursement, and an unrestricted act is interpreted according to custom (Al-Mabsut, 10/210-211; Mukhtasar Ikhtilaf al-'ulama', 4/350-351; Al-Muhidh, 3/128-129; Al-Kafi, 1/484; Tafsir al-Qurtubi, 9/135; Al-Ishraf 'ala nukat masa'il al-khilaf, 3/278, no. 1119; Jami' al-ummahat, p. 460; Al-Taj wa-l-Iklil, 5/45; Sharh Mukhtasar Khalil, 7/131; Al-Sharh al-kabir with al-Dasuqi's hashiya, 5/534-535; Tabhir al-Mukhtasar, 5/44-45; Al-Ishraf, 6/360).
The Malikis, however, said: the one who picked him up has the right of recourse against the father of the picked-up child for the maintenance he spent on him, if the father exposed him deliberately, established by admission or by evidence, on condition that the spending is established and that he swears it was as a loan and not as a gift; the father must have been solvent at the time of the spending; he then has recourse against him for the equivalent. But if the child had strayed or run away, and someone spent on him, there is no recourse against the father even if he is solvent, because the spending was then by way of gift. If they dispute over the amount, proof is required; otherwise the father's word prevails by oath, for he is the debtor. Reliance is placed on strong supposition even if they differed over the deliberate exposure: if the one who picked him up claims that the father exposed him deliberately and the father denies it, the apparent is that the father's word prevails, because of the compassion instilled in him; likewise if they differed over the father's solvency at the time of the spending (Al-Tamhid, 3/128-129; Al-Kafi, 1/484; Tafsir al-Qurtubi, 9/135; Al-Taj wa-l-Iklil, 5/45; Sharh Mukhtasar Khalil, 7/131; Al-Sharh al-kabir with al-Dasuqi's hashiya, 5/534-535; Tabhir al-Mukhtasar, 5/44-45).
The Hanbalis in the madhhab said: if he spent on him with the intention of recourse without the ruler's order, his maintenance is paid to him from the bayt al-mal of the Muslims, because he discharged what was owed by another: he therefore has recourse against the one upon whom the obligation lay, like the guarantor who paid on behalf of the one he guaranteed (Al-Mughni, 6/38; Al-Insaf, 6/433-434; Kashshaf al-Qina', 4/277; Matalib uli al-nuhha, 4/244).
When the laqit's lineage is claimed, several situations arise. First case: a man claims him, whether the one who picked him up or another. First form: a Muslim claims him. The jurists of the four schools agreed that if a man, whether the one who picked him up or another, claims the laqit and brings evidence, the child is attached to him. Likewise, according to the majority of the jurists, the Hanafis, the Malikis according to one view (that of Ashhab), the Shafi'is and the Hanbalis, if a free Muslim claims a free Muslim laqit, his lineage is attached to him whenever it is possible that he be from him; because the acknowledgment is pure benefit for the child, through the connection of his lineage, with no harm to anyone else in it, so it is accepted like an acknowledgment of wealth; and for the benefit of the young child, for people take pride in lineages and are taunted for lacking them. If the acknowledger is the one who picked him up, he remains in his care; if he is someone else, that one may take him from the one who picked him up, because it is established that he is his father, so he is more entitled to his child as if evidence had been established (Bada'i' al-Sana'i', 6/198; Al-Jawhara al-nira, 4/181; Al-Ikhtiyar, 3/35; Al-Lubab, 1/658; Mukhtasar al-Wiqaya, 2/250; Al-Bayan, 8/24; Rawdat al-talibin, 4/242; Mughni al-muhtaj, 3/538; Al-Dibaj, 2/578; Tuhfat al-muhtaj, 7/666-667, 683; Al-Mughni, 6/43; Kashshaf al-Qina', 4/286; Sharh Muntaha al-iradat, 4/322-323).
The Malikis stated explicitly in the madhhab, and this is the view of Malik and Ibn al-Qasim, that he is not attached to him except by evidence, or by an indication, such as that no child survives to the man, so that he says: "I exposed him for that", and this is known from his words, and the child is attached to him; otherwise he is not attached to him. It is stated in the Mudawwana al-kubra (8/335-336) concerning the man who claims the laqit as his son: Sahnun said: it has reached me from Malik that he said: he is not believed unless there is an indication, such as a man to whom no child survives, who hears people say that the exposed child survives; he then exposes his child, who is picked up, and then comes to claim him. If there comes from him what shows that the man had no living child, and what supports the truthfulness of his word, the laqit is attached to him; otherwise the laqit is not attached to him, and the claimant of the laqit is not believed except by evidence, or by the indication like the one I have mentioned. Sahnun said, and others said as well: when it is known that he is a laqit, no one's claim attaches to him except by evidence that they attest. Ibn Qasim was asked about the one in whose care he is: does his acknowledgment or denial benefit? He said: I have heard nothing of it; I regard him as a witness, and the testimony of a single person in lineages is not permitted; it is not complete with Malik either, and there is no oath alongside a single witness in lineages. He was asked about the one who picked him up if he claimed him for himself: Malik said nothing about it; he and the other are equal, and the child's lineage is not established by his word once it is known that he picked him up.
Second form: a non-Muslim claims him. The jurists of the four schools, the Hanafis, the Malikis, the Shafi'is and the Hanbalis, agreed that if a dhimmi claims the laqit, the child is attached to him, because he acknowledged the lineage of a child of unknown lineage from whom he could be, and his acknowledgment harms no one; so his acknowledgment is established like the Muslim's, because he is like the Muslim in the respects through which lineage is established, namely intercourse (firash) in ownership and in doubt (shubha); he is therefore like the Muslim in the attachment of lineage to him. The Malikis, however, said: this is not established except by evidence, as if a Muslim claimed him, as in the previous issue.
They then differed: is he attached to him in religion, or in lineage only? The majority of the jurists, the Hanafis, the Shafi'is in the madhhab and the Hanbalis, held that he is attached to him in lineage only, not in religion, and that he has no right to his custody, because the laqit has been judged a Muslim, so the dhimmi's word about his disbelief is not accepted, as in the case of one whose lineage is known; it is a claim contrary to the apparent, which is therefore not accepted by itself, like a claim of slavery. As for the lineage alone, without following him in religion, it is a benefit free of harm, so his word is accepted in it; it cannot be accepted in what constitutes the greatest harm and disgrace in this world and the hereafter; and Islam is established by the land, and nullifying it would harm him; the father's disbelief is not a necessity of the child's disbelief, since the mother may be a Muslim. The Hanafis said: unless he picked him up from a synagogue, a church or one of their villages, in which case he is a dhimmi (Al-Ikhtiyar, 3/35-36; Al-Lubab, 1/658; Mukhtasar al-Wiqaya, 2/250; Al-Ishraf 'ala nukat masa'il al-khilaf, 3/277-278, no. 1118; Al-Taj wa-l-Iklil, 5/47-48; Sharh Mukhtasar Khalil, pp. 132-133; Al-Sharh al-kabir with al-Dasuqi's hashiya, 5/536-537; Tabhir al-Mukhtasar, 5/46; Al-Bayan, 8/24, 26; Rawdat al-talibin, 4/242; Mughni al-muhtaj, 3/530-531, 538; Al-Dibaj, 2/578; Tuhfat al-muhtaj, 7/666-667, 683; Al-Mughni, 6/43; Kashshaf al-Qina', 4/286; Sharh Muntaha al-iradat, 4/322-323).
The Shafi'is said in one view: the child follows him in his religion, because everything to which his lineage attaches carries religion with it, like the evidence; except if something prevents. This is when he claimed him without establishing the lineage by evidence; if he establishes his lineage by evidence, he attaches him in disbelief. The Malikis said: the child follows him in his religion, unless he accepts Islam on that occasion and understands Islam, in which case he is a Muslim (Al-Dhakhira, 9/135; Tabhir al-Mukhtasar, 5/46).