Islamic Fiqh > Endowments (waqf) and property > Luqata: the lost item found > Two Muslims or more claim the lineage
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Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
Second case: two persons or more claim him. If two claim the picked-up child, two forms arise. First form: two Muslims claim him. If two Muslims claim the laqit and one of them has evidence, the child belongs to the one with the evidence, by the agreement of the four schools. They then differed if there is no evidence, or if two contradictory pieces of evidence exist: is the child attached to them, or presented to the qa'if (the expert who recognizes lineages by resemblance)?
The Hanafis said: if one of the two describes a mark on his body, he has more right to him, because the mark indicates the precedence of the hand, since it is apparent that a person knows his child's mark. If neither describes a mark, he is the son of both, because they are equal in the lineage. If the claim of one preceded, he is his son, because his right became established at a time when no contender existed, unless the other establishes evidence, for the evidence is stronger. If they all establish evidence, judgment is given for both. If the claimants are more than two, Abu Hanifa allowed up to five. Abu Yusuf said: it is established from two, and not from more than that; and according to Muhammad it is established from three, and not from more than that (Bada'i' al-Sana'i', 6/199-200; Al-Hidaya, 2/173; Al-Ikhtiyar, 3/35; Al-'Inaya, 8/189; Al-Jawhara al-nira, 4/182; Al-Lubab, 1/658; Majma' al-anhar in Sharh Multaqa al-abhur, 2/522).
The Shafi'is and the Hanbalis held that if two men claim the laqit and one of them has evidence, judgment is given for the one with the evidence, because the evidence is stronger than the claim. If neither has evidence, or they have evidence and it is contradictory, the two pieces of evidence fall: it is as if there were no evidence, and he is presented to the qa'if; they are people who know lineages by resemblance, and this is not restricted to a specific tribe: whoever is known for it and whose accuracy has been repeatedly confirmed is a qa'if. If he attaches him to one of them, he is attached to him; if he attaches him to both, he is attached to both according to the Hanbalis; the Shafi'is said: the laqit's reaching majority is awaited, and after his majority he is instructed to attribute himself to whichever of the two his innate disposition inclines to. If one of them mentions a mark in the laqit and the other does not, the describer is not given precedence for that according to the Shafi'is, while he is given precedence according to the Hanbalis and the Hanafis, as has come and as will come in detail in the following issue.
The Shafi'is said: if two men eligible for the picking up dispute the laqit by each claiming lineage from him, and there is no evidence for either, or each has evidence and it is contradictory, the laqit is presented with the two claimants to the qa'if, and he is attached to whoever the qa'if attaches him to, for this attachment has an effect in attribution in the case of resemblance. If one of them has evidence, judgment is given by it, because the evidence is preferred over the qa'if's attachment. If there is no qa'if, or he is uncertain, or he disclaims both, or attaches him to both, his reaching majority is awaited, and after his majority he is instructed to attribute himself to whichever of the two his innate disposition inclines to, for mere inclination is not sufficient: whichever of the two he attributes himself to, his lineage is attached to him, based on what al-Bayhaqi narrated with a sound chain: two men claimed a man, and it was not known which of them was his father, so Omar (may Allah be pleased with him) said: "Follow whichever of them you wish." The child's disposition inclines toward his begetter, and he finds in him what he does not find in the other; attribution while he is a child, even a discerning one, is not sufficient; the two maintain him during the waiting period, and the arrangement is made with the one to whom the lineage was attached; the other has recourse only if he spent with the ruler's permission.
If he attributes himself to one of them and the qa'if attaches him to the other, the qa'if is given precedence, for he constitutes a proof or a judgment; and if the qa'if attaches him to one of them and the other establishes evidence, the evidence is given precedence, for it is a proof in every dispute. If they were two children and each attributed himself to one, the problem remains; if one of them reverts to the other, his word is accepted after majority. If two contradictory pieces of evidence are established upon his lineage, both fall according to the most apparent view, and he is presented to the qa'if as has passed, because the two evidences cannot be acted upon, the child being from both being impossible, and one evidence is not preferred over the other by precedence of the hand, since the hand indicates ownership, not lineage. According to the second view: the two evidences do not fall, but one is preferred by the qa'if's word.
Imam Ibn Qudama (may Allah have mercy on him) said: if two men claim him and one of them has evidence concerning him, he is his son; if they establish two evidences that contradict and fall, they cannot be employed here. If there is no evidence, or two contradictory evidences have fallen, we show him to the qa'if with the two of them, or with their 'asaba (agnate relatives) in their absence, and we attach him to whoever the qa'if attaches him to. This is the view of Anas, 'Ata', Yazid ibn Abd al-Malik, al-Awza'i, al-Layth, al-Shafi'i and Abu Thawr. The people of opinion (ashab al-ra'y) said: the qa'if has no ruling, and he is attached to all the claimants, because judgment by the qa'if is reliance upon mere resemblance, supposition and guesswork; resemblance is found between strangers and negated between relatives. That is why it is narrated from the Prophet that a man came to him and said:
"Messenger of Allah, my wife has given birth to a black boy!" He asked: "Do you have camels?" He said: yes. He asked: "What color are they?" He said: red. He asked: "Are there dusky ones among them?" He said: yes. He said: "How did that come to them?" He said: perhaps a strain took hold. He said: "And this, perhaps a strain took hold."Agreed upon: reported by al-Bukhari and Muslim
They said: if resemblance were sufficient, it would suffice in the case of the child of the mula'ana (the woman who pronounced li'an with her husband), and in the case where one of the heirs acknowledges a brother whom the rest deny. Our evidence is what Aisha (may Allah be pleased with her) narrated: the Prophet entered upon her one day joyful, with delight visible on his face, and said:
"Do you not see that Muhraz al-Mudliji raised his eyes and saw Zayd and Usama with their heads covered and their feet showing, and said: these feet are from one another."Agreed upon: reported by al-Bukhari and Muslim
Had reliance upon the qa'if not been permitted, the Prophet (peace be upon him) would not have rejoiced at it nor relied upon it. And Omar (may Allah be pleased with him) judged by it in the presence of the Companions and no objector denied it, so it constitutes a consensus. It is also indicated by the Prophet's saying (peace be upon him) concerning the child of the mula'ana:
"Look at her: if she gives birth to a child with dark shanks, thick of heel, like a small lizard, I do not see but that she lied against him; if she gives birth to a child with kohl-lined eyes, curly hair, plump in shanks and arms, thin of shanks, then he belongs to the one against whom she declared the li'an."Saying of the Prophet (peace be upon him)
She gave birth to the child upon the disfavored description, and the Prophet (peace be upon him) said: "Were it not for the oath, there would have been a case between her and me." He thus judged for the one of the two whom he resembled; and his words "Were it not for the oath" indicate that nothing prevented him from acting upon resemblance except the oath: once the obstacle is removed, acting upon it becomes obligatory when its cause exists.
Likewise the Prophet's saying (peace be upon him) concerning the son of Zam'a's mother, when a clear resemblance to 'Utba ibn Abi Waqqas was seen in him: "Screen him from me, O Sawda": he thus acted upon the resemblance in screening Sawda from him.
It may be objected: the two hadiths are a proof against you, for the Prophet (peace be upon him) did not judge by resemblance in them; rather the child was attached to Zam'a and he said to Abd ibn Zam'a: "He is yours, O Abd ibn Zam'a: the child belongs to the bed, and the adulterer gets only the stone"; and he did not act upon the resemblance of the child of the mula'ana in applying the legal punishment (hadd) to her because of his resemblance to the accused.
We answer: he did not act upon it in the son of Zam'a's mother because the bed (firash) is stronger; abandoning a proof to counteract what contradicts it does not require ignoring it when it is free of contradiction; likewise abandoning the application of the punishment because of her oath, as his words show: "Were it not for the oath, there would have been a case between her and me." The weakness of resemblance for applying the punishment does not entail its weakness for attaching the lineage: the punishment for fornication is only established by the strongest and most numerous proofs and the firmest confession, to the point that fourfold repetition is taken into account in it and it is averted by doubts; whereas the lineage is established by the testimony of a single woman upon the birth, by mere claim, and is established even with the apparent nullification of it, to the point that if a woman brought a child while her husband had been absent from her for twenty years, her child would be attached to him. How then can non-application of the punishment be argued to negate him? It is a judgment based on predominant supposition and sound opinion from one who possesses expertise, like the judgment of the appraisers; as for their saying that resemblance may exist or not exist, the apparent is its existence, which is why the Prophet (peace be upon him), when Umm Salama said: "Would a woman do that?", said: "From where would the resemblance come?"
The hadith they argue with is a proof against them: the man's denial of his child because of the difference in color, and his resolve to deny him for it, show that habit is otherwise, that people's nature rejects it, and that it is only found rarely; and the Prophet (peace be upon him) only attached him to him because of the bed. Now the apparent may be countered by evidence, but it may not be abandoned otherwise. And the weakness of resemblance for negating the lineage does not entail its weakness for establishing it: the lineage is guarded in its establishment and is established by the slightest evidence, and rigor in negating it follows from that, for it is not removed except by the strongest of evidences, just as the punishment, once averted by doubt, is only established by the strongest proof. It therefore does not follow from the prohibition of negating the lineage by resemblance in the mentioned report that it cannot establish the lineage in our issue.
It may be objected: here, if you know by the qa'ifa, you have negated the lineage of whoever the qa'if did not attach him to.
We answer: the lineage is negated here for lack of its evidence, because there was only the mere claim, which was countered by its like, so its ruling fell; and the resemblance was a weight favoring one of the two, so another indication was nullified, and the lineage therefore came to be negated by the absence of its evidence. And the precedence of the li'an does not prevent acting upon the resemblance in its absence, like the hand, which the evidence takes precedence over and which is nevertheless acted upon when the evidence is absent.
If two men claim him and the qa'if attaches him to both, he is attached to both: he is their son, inheriting from them as a son, and they both inherit from him as from one father. This is narrated from Omar and Ali (may Allah be pleased with them both), and it is the view of Abu Thawr. The people of opinion said: he is attached to both by the mere claim. Al-Shafi'i said: he is not attached to more than one; if the qa'if attaches him to both, their words fall and no judgment is given for them. He argued with a narration from Omar (may Allah be pleased with him) that the qa'if said: "They both shared in him", and Omar said: "Attach him to whichever of them you wish." For it cannot be conceived that he is from two men; if the qa'if attaches him to both, we know their lie with certainty and their words fall, just as if he attached him to two mothers; the agreement of the two claimants upon that would establish nothing; and if each of them claimed him with evidence, the evidences would fall; and if attachment to both were permitted, it would be established by their agreement and would occur despite the contradiction of their two evidences.
Our evidence: what Sa'id narrated in his Sunan (Sufyan, from Yahya, from Sa'id, from Sulayman ibn Yasar) from Omar concerning a woman whom two men approached in a state of purity: the qa'if said: "They both shared in him." So he placed him between the two. And by its chain, from al-Sha'bi, that Ali used to say: he is the son of both, and the two are his fathers: they inherit from him and he inherits from them; and al-Zubayr ibn Bakkar narrated it by his chain from Omar. Imam Ahmad said: the hadith of Qatada, from Sa'id, from Omar, places him between the two; and Qabus, from his father, from Ali, places him between the two. Al-Athram narrated by his chain from Sa'id ibn al-Musayyab concerning two men who shared the purity of a woman: she conceived and gave birth to a boy resembling them both; the matter was referred to Omar ibn al-Khattab (may Allah be pleased with him), who summoned the qa'if; they examined and said: we see him resembling them both; so he attached him to both and made him inherit from them and them from him. Sa'id said: the surviving one of the two is his 'asaba. What they narrated from Omar, we do not know its authenticity; and even if it were sound, it can be understood that Omar left the qa'if's word for another reason: either their lack of trustworthiness, or what their words and disagreement revealed to him of what required abandoning it; the obstacle to accepting their word is therefore not restricted to their sharing in him.
Ahmad said: if the qa'if attaches him to both, he inherits from them and they inherit from him; if one of them dies, he belongs to the one who remains of them, and his lineage from the first remains established, with nothing removing it. The meaning of his words "he belongs to the one who remains of them" (and Allah knows best) is that he inherits from him with the full inheritance of the father, just as the grandmother alone takes what the grandmothers take, and the wife takes alone what all the wives take (Al-Mughni, 6/45-49; see Al-Turuq al-hakimiyya, p. 312; Al-Mubdi', 5/306-309; Al-Insaf, 6/445; Kashshaf al-Qina', 4/287; Sharh Muntaha al-iradat, 4/323-324; Matalib uli al-nuhha, 4/264).
As for the Malikis, it has come from them, as previously mentioned, that he is not given to anyone except by evidence, not by claim.
The jurists differed: if one of the two claimants describes a mark and the other does not, is the lineage attached to him? The Hanafis and the Hanbalis held that it is attached to him. Imam al-Kasani (may Allah have mercy on him) said: if they are two free Muslims and one of them describes a mark on his body, the describer has more right to him according to us. Al-Shafi'i (may Allah have mercy on him), however, refers to the qa'if, whose word is taken. Our statement is the sound one: when two claims contradict, the weightier must be acted upon, and one of them was rendered weightier by the mark: he accepted the mark while the other described nothing, which indicates that his hand preceded, and its removal requires evidence. The proof that acting upon the mark is permitted is Allah's statement, exalted be He, narrating the judgment by the mark among the past nations:
"If his shirt is torn from the front, then she has told the truth and he is of the liars. And if his shirt is torn from the back, then she has lied and he is of the truthful. So when he saw his shirt torn from the back, he said: indeed, it is a plot of you two. Indeed, your plot is great."
Surah Yusuf, 26-28
Allah narrated in His noble Book the judgment by the mark among the former nations without changing it for them, and the Wise One, when He narrates a disapproved matter, changes it: judgment by the mark is therefore a legislation for us, originating from it. Likewise, when two spouses differ over the household furnishings, it is distinguished by the mark; so it is here (Bada'i' al-Sana'i', 6/199; Al-Hidaya, 2/173; Al-Ikhtiyar, 3/35; Al-'Inaya, 8/189; Al-Jawhara al-nira, 4/182; Al-Lubab, 1/658; Majma' al-anhar in Sharh Multaqa al-abhur, 2/522).
Imam Ibn al-Qayyim (may Allah have mercy on him) said: if the laqit is claimed by two men and one of them describes a concealed mark on his body, he is given precedence and judgment is made for him; this is the madhhab of Ahmad and Abu Hanifa. Al-Shafi'i said: no judgment is made by that, just as if the two claimed a property and one of them described its hidden features. Those who preferred this ruling distinguished between the two cases: this is a kind of picking up, so the describer is given precedence as with the luqta of property, and the sound explicit text indicates it; the analogy of the laqit to the luqta of property is stronger than his analogy to the claim of other entities; moreover, in the claim of a property, when one of the two describes it in a way that outwardly indicates the truth of his word, there is consideration; and the madhhab's analogy in the dispute of the two spouses gives precedence to the describer. An equivalent case occurred for us: two men disputed a purse containing dirhams; the ruler asked one of them to describe it, and he described hidden features; he then asked the other, who described other features; when they were examined, the first man's features matched it and the other's lie became apparent, so the ruler and those present knew his truthfulness in his claim and his companion's lie, and he gave it to the truthful one. This can strengthen to the point of yielding certainty, or weaken, or remain middling (Al-Turuq al-hakimiyya, pp. 312-313; Sharh Muntaha al-iradat, 4/323).
As for the Shafi'is, Imam al-'Imrani (may Allah have mercy on him) said: "If two men claim the lineage of a laqit and one of them mentions a mark on the laqit, such as a birthmark on his body or the like, while the other does not mention it, the describer is not given precedence for that." Abu Hanifa said: "The describer is given precedence for that." Our proof: knowing the mark is a description of the thing claimed, and a claimant is not given precedence by describing what he claims, just as if the two claimed ownership of a property and one of them described it (Al-Bayan, 8/32).
Second form: a Muslim and a dhimmi claim him. The jurists agreed that if a Muslim and a dhimmi claim the lineage of a laqit and one of them brings evidence while the other does not, the one with the evidence is given precedence, whether he is the Muslim or the dhimmi. The scholars then differed: if a Muslim and a dhimmi claim the laqit's lineage, and neither brings evidence nor a mark, is the Muslim given precedence over the disbelieving dhimmi, or does the dhimmi have the Muslim's ruling so that neither claim is given precedence over the other? The majority of the jurists, the Malikis, the Shafi'is and the Hanbalis, held that neither is given precedence over the other, because each of them, if he claimed alone, would have his claim accepted; when they come together, they are equal like two free Muslims; and the Muslim is the equal of the dhimmi in the cause through which the lineage attaches, namely the bed or its like, so he is his equal in competing for the lineage, like the Muslims among themselves (Al-Ishraf 'ala nukat masa'il al-khilaf, 3/277-278, no. 1118; Al-Ishraf of Ibn al-Mundhir, 6/362; Al-Bayan, 8/32; Rawdat al-talibin, 4/243; Al-Nihm al-Wahhaj, 6/83; Mughni al-muhtaj, 3/539; Tuhfat al-muhtaj, 7/685; Al-Dibaj, 2/579; Al-Mughni, 6/45; Kashshaf al-Qina', 4/287).
The Hanafis said: if two men claim that he is the son of them both without evidence, one being a Muslim and the other a dhimmi, the Muslim has more right and judgment is given for him, because that is more beneficial for the laqit (Bada'i' al-Sana'i', 6/199; Al-Hidaya, 2/178; Al-Ikhtiyar, 3/35; Al-Jawhara al-nira, 4/182; Al-Fatawa al-Hindiyya, 2/286).
Third case: a woman claims him. When a woman claims the lineage of a foundling child and brings evidence that he is her son, there is no disagreement among the jurists that the lineage is attached to her. They differed if she claims that without evidence: is her word accepted in it and the lineage attached to her, or not? This is of two kinds. The first: she has no husband. The jurists differed about the unmarried woman who claims the lineage of a foundling child without bringing evidence: Ashhab among the Malikis, the Shafi'is in one view, and the Hanbalis in a narration, hold that her claim is accepted and the lineage is attached to her, because she is one of the two parents and the lineage is established by her claim as by the father's; it can be from her as the man's child can be, and even more, for she brings him forth from a husband or from intercourse in a doubtful situation, and her child from fornication is attached to her, unlike the man. There is also the story of Dawud and Sulayman (peace be upon them): two women were referred for judgment, each of them had a son, and the wolf took one of them; each claimed that the surviving one was her son and that the one the wolf had taken was the other's; Dawud judged for the elder and Sulayman for the younger, by their mere claims. The woman is like the man in the respects through which lineage attaches, and she exceeds him in that her child from fornication is attached to her; if lineage attaches to the man by acknowledgment, the woman is more entitled.
It may be objected: acknowledgment of lineage was accepted from the husband only because of the benefit it contains, warding off disgrace from the boy and protecting him from being reckoned a child of fornication; and none of that is obtained by attaching his lineage to the woman; rather, attaching him to her without her husband exposes him and her to disgrace. We answer: we accepted his claim because he claims a right that no one disputes and in which no one is harmed, so his word is accepted in it like a claim of wealth, and this is even more realized in the woman's claim (Al-Bayan, 8/27; Al-Mughni, 6/44).
The majority of the jurists, the Hanafis, the Malikis according to the mashhur, the Shafi'is according to the most correct view and the Hanbalis in a narration, held that her claim is not accepted unless she establishes the evidence, because the mother can establish conclusive evidence that the child is from her, so her word is not accepted on mere claim; whereas the father cannot establish evidence that the child is from him, so the need to establish the lineage by mere claim touched his side. Ibn al-Mundhir (may Allah have mercy on him) narrated this as a consensus, saying: "All those of the people of knowledge whom we preserve have agreed that if a woman claims the laqit as her son, her word is not accepted." This is the view of al-Thawri, al-Shafi'i, Yahya ibn Adam, Abu Thawr and the people of opinion (Al-Ishraf, 6/361; Al-Ijma', 574; see Bada'i' al-Sana'i', 6/200; Al-Jawhara al-nira, 4/182; Al-Mudawwana al-kubra, 8/336; Al-Bayan, 8/27; Rawdat al-talibin, 4/243; Al-Nihm al-Wahhaj, 6/82; Mughni al-muhtaj, 3/538; Tuhfat al-muhtaj, 7/684; Al-Dibaj, 2/578; Al-Mughni, 6/45; Kashshaf al-Qina', 4/287).
Second kind: she is married. The generality of the people of knowledge, the Hanafis, the Malikis according to the mashhur, the Shafi'is according to the most correct view and the Hanbalis in the madhhab, held that her claim is not accepted unless her husband confirms her in it or she establishes the evidence, because it would impose the lineage upon another: if she acknowledges the lineage, it is as if she acknowledged a right against herself and against others, being the wife of a husband; so her acknowledgment is annulled with respect to the husband, and that annuls all of it, for a single acknowledgment, when part of it is annulled, is entirely annulled. Ibn al-Mundhir (may Allah have mercy on him) narrated the consensus upon it, saying: all those of the people of knowledge whom we preserve have agreed that if a woman claims the laqit as her son, her word is not accepted.
The Shafi'is against the most correct view, the Hanbalis in a narration, and Ashhab among the Malikis, held that her claim is accepted and the lineage is attached to her, for the reasons already cited: she is one of the two parents and the lineage is established by her claim as by the father's; it can be from her as the man's child can be, and even more; and the story of Dawud and Sulayman (peace be upon them); the woman is like the man in the respects through which lineage attaches, and her child from fornication is attached to her; if lineage attaches to the man by acknowledgment, the woman is more entitled. However, according to the most correct view of the Shafi'is and the Hanbalis, the lineage is not attached to her husband, because we attached the child by her acknowledgment, and no acknowledgment from the husband took place, just as if the husband acknowledged that he is his son without it being attached to her. And the view opposed to the most correct among the Shafi'is: he is attached to him.
A third narration is related from Imam Ahmad, transmitted by al-Kawsaj: when the woman claims a child, if she has brothers or a known lineage, she is not believed except by evidence; if she has no deterrent, nothing stands between her and him; for if she has a family and a known lineage, her giving birth is not hidden from them, and they are harmed by attaching the lineage to her, because of the taunting they incur for her giving birth from other than her husband; it is not so when she has no family. Ibn Qudama (may Allah have mercy on him) said: it can be understood that the lineage is not established by her claim in any way, and this is the view of al-Thawri, al-Shafi'i, Abu Thawr and the people of opinion. Ibn al-Mundhir said: all those of the people of knowledge whom we preserve have agreed that the lineage is not established by the woman's claim, because she is able to establish the evidence of the birth, so her word is not accepted by itself, just as if her husband suspended her divorce upon her giving birth. Our evidence: she is one of the two parents and resembles the father, and the possibility of the evidence does not prevent accepting the word, as with the man, for whom too it is possible to establish the evidence that this child was born upon his bed (Al-Mughni, 6/44-45).
The discussion of the claim of the laqit by two women branches according to the acceptance of the woman's word in the claim. The Hanafis said: if two women claim the laqit and one of them establishes the evidence, she has more right to him. If they both establish the evidence, he is the son of both according to Abu Hanifa, for establishing the lineage does not require establishing the birth; other rulings attach to it, such as the prohibition through marriage, the right of custody, and the obligation of inheritance. According to Abu Yusuf, he belongs to neither of them, because it is impossible for two women to give birth to one child. From Muhammad there are two narrations: in that of Abu Hafs he is made the son of both, and in that of Abu Sulayman he is not made the son of either (Tuhfat al-fuqaha, 3/354; Bada'i' al-Sana'i', 6/200; Al-Jawhara al-nira, 4/182-183; Tabyin al-haqa'iq, 3/299; Al-Bahr al-Ra'iq, 5/157; Al-Fatawa al-Hindiyya, 2/287).
As for the Shafi'is, al-'Imrani (may Allah have mercy on him) said: "If two women claim the birth of a laqit and there is no evidence for either of them: if we say that the woman's claim in lineage is never accepted, the claim of neither of them is accepted. If we say that her claim is accepted when she is not a wife (firash) and is refused when she is: if they are both wives of two men, their claim is not accepted; if one of them is a wife without the other, the claim of the one who is not a wife is given precedence; and if neither is. Or: the woman's claim is accepted in every case: are they then presented with the child to the qa'if? Two views, related by the shaykh Abu Ishaq: the first, that they are not presented, because the mother can be known with certainty through sight, so recourse is not had to the qa'if; the second, that they are presented with the child to the qa'if, and Ibn al-Sabbagh mentioned only this, because they are two of the parents, so they are presented with the child to the qa'if like the two men."
If one of them establishes evidence of the birth, whether composed of two men, or of a man and two women, or of four women, judgment is given by the establishment of the lineage from her, because the evidence is stronger than the claim. If she is a wife of a husband or of a master, the child is attached to him, because the evidence testified to her giving birth to him from him, so he is attached to the one of the bed; this differs from attaching him to her by her acknowledgment, for we attach him only to the acknowledger. If each of the two establishes evidence of the birth: if we say they both fall, it is as if there were no evidence, as has passed; and if we say they are employed, neither the suspension (waqf) nor the division (qisma) applies.
The shaykh Abu Hamid and Ibn al-Sabbagh said: the drawing of lots does not apply here either, because we have what is stronger than the lot, namely the qa'if, so we present him to him; if he attaches him to one of them, we strengthen her evidence thereby and attach him to her and to her husband, and he is not removed from it except by the li'an. If the qa'if attaches him to both, or disclaims them both, or the matter remains unclear, or there is no qa'if, the child is left until he reaches majority and attributes himself to one of them, and his maintenance is upon the two of them. When he attributes himself to one of them, we give her evidence precedence and attach him to her and to her husband, and he is removed only by the li'an.
If one of the two women dies, or her husband dies before the laqit reaches majority, the share of a son is set aside from the deceased's inheritance: if he reaches majority attributing himself to the deceased woman, he takes what was set aside from her inheritance, or from her husband's; if he attributes himself to the living one, what was set aside is returned to the heirs of the deceased.
[Derived issue: the claim of a laqit by a man and a woman.] Al-Tabari mentioned: if a man and a woman come together, the man having a wife other than this woman and the woman a husband other than this man, and each of them claims parentage of the laqit and each establishes evidence, Abu al-Abbas ibn Surayj said: there are four views: the first, that the man's evidence has precedence, for if we attached him to the woman, he would join her husband without any claim from him; the second, that the woman's evidence has precedence, because the child's coming out of her is known through sight and with certainty, whereas the child's coming out of the husband is only known by predominance of supposition; the third, that the two evidences contradict each other, neither having precedence over the other; the fourth, that he is presented with them to the qa'if (Al-Bayan, 8/32-34; Rawdat al-talibin, 4/244-245).
Ibn Qudama (may Allah have mercy on him) said: "If two women claim the lineage of a child, that is based on the acceptance of their claim. If they are of those whose claim is not heard, their claim is not heard. If one of them is of those whose claim is heard without the other, he is her son as if she alone claimed him. If they both are of those whose claim is heard, they are equal in establishing him by evidence, or by presentation to the qa'if in its absence, like the two men." Ahmad said in the narration of Bakr ibn Muhammad, concerning a Jewess and a Muslim woman who gave birth and the Jewess claimed the Muslim woman's child, the matter being suspended, and it was said that the qa'if should be seen: "How excellent that is!" Because resemblance exists between her and her son even more than between a man and his son, due to their exclusive role in pregnancy and nursing; the disbelieving woman and the Muslim woman, the free woman and the slave, are one in the claim as we said regarding the man; and this is the view of al-Shafi'i's companions in the aspect in which they accept their claim. If the qa'if attaches him to two mothers, he is not attached to them and the qa'if's word is voided, for we know its error with certainty.
The people of opinion said: he is attached to both by the mere claim, because the mother is one of the two parents, so attaching him to two is permitted as with the fathers. Our evidence: his being from the two of them is impossible with certainty, so judgment by it is not permitted, just as if he were older than them or their like; this differs from the two men, for his being from them is possible, since the two seminal drops of two men may meet in a woman's womb, and a child may be created from them as from the drop of the man and the woman; that is why the qa'if said to Omar: "They both shared in him." Nor is one required to attach him to one from whom his being is impossible because he was attached to one from whom it is possible, just as attaching him to the one who begets his like did not require attaching him to the one who is lesser (Al-Mughni, 6/50; see Al-Mubdi', 5/308).
When one of the two parents of the child is a Muslim, he is a Muslim by consensus, by the predominance of Islam; and no apostasy occurring after conception from either of them harms him. The jurists differed, however, when the two parents are disbelievers and their minor son, if discerning, embraces Islam independently of them: is his Islam valid? They first agreed on the invalidity of the Islam of the non-discerning child, because the child who does not understand realizes no conviction of Islam, and his words carry no weight, indicating neither will nor purpose.
The Shafi'is according to the most correct view, some of the Malikis, Ahmad in a narration, and Zufar among the Hanafis, held that the Islam of the boy embraced independently is not valid in the rulings of this world, because he is not legally accountable (mukallaf): he resembles the non-discerning and the insane, whose Islam is invalid by agreement; his utterance of the two testimonies is either a report (khabar) or an enactment (insha'): if it is a report, his report is not accepted; if it is an enactment, it is like his contracts, which are void. As for the rulings of the hereafter, his Islam is valid and he is among the winners by agreement (Rawdat al-talibin, 4/235-236; Al-Nihm al-Wahhaj, 6/73-75; Mughni al-muhtaj, 3/533; Tuhfat al-muhtaj, 8/669-674; Al-Ishraf 'ala nukat masa'il al-khilaf, 3/275-277).
The majority of the jurists, the Hanafis, the Malikis according to the sound position of the madhhab, the Shafi'is against the most correct view and the Hanbalis in the madhhab, held that his Islam is valid independently, and he inherits from his Muslim relative (Al-Ikhtiyar, 4/181-182; Al-Ishraf 'ala nukat masa'il al-khilaf, 3/275-277; Sharh Mukhtasar Khalil, 5/11; Al-Hawi al-kabir, 13/171; Rawdat al-talibin, 4/235-236; Al-Nihm al-Wahhaj, 6/73-75; Mughni al-muhtaj, 3/533; Tuhfat al-muhtaj, 8/669-674; Al-Ifsah, 2/67; Al-Mughni, 9/22-24; Al-Kafi, 4/155; Al-Sharh al-kabir, 10/83; Sharh al-Zarkashi, 3/92; Al-Mubdi', 9/174-175; Al-Insaf, 10/329).
Imam Ibn al-Qayyim (may Allah have mercy on him) explained the view of the Shafi'is and the view of the majority. He said: the Islam of the boy comes about through five things, agreed upon in some and disputed in others. The first: his Islam by himself when he understands Islam; it is valid according to the majority, the madhhab of Abu Hanifa, Malik, Ahmad and their companions. Those who hold his Islam valid say it is valid inwardly and outwardly, to the point that if he turns away from it he is compelled, and if he persists in his turning away he is an apostate. It is textually narrated from al-Shafi'i that his Islam is not valid; his companions hold two other views. One: his Islam is suspended; if he reaches majority persisting in the ruling of Islam, we know for certain that he was a Muslim from that day; if he describes disbelief, we know that it was idle talk; this has been expressed as the validity of his Islam outwardly, not inwardly. The second: his Islam is valid, to the point that he is to be separated from his disbelieving wife and inherits from his Muslim relative: this is the choice of al-Isfara'ini. They said: on this basis, if he apostatizes, his apostasy is valid, but he is not killed until he reaches majority: if he returns to Islam, well and good; otherwise he is killed. And according to al-Shafi'i's textual position, it may be said: he is to be separated from his disbelieving parents and family lest they tempt him; if he reaches majority describing disbelief, he is threatened and summoned to Islam; if he persists, he is returned to them. Is this separation recommended or obligatory? Two views, the sounder of which is that it is recommended: one deals gently with his parents to take him from them; if they refuse, there is no separation. This concerns the rulings of this world; as for what relates to the hereafter, the master Abu Ishaq said: if his inward conforms to his outward, he is among the winners of Paradise; this is expressed as the validity of his Islam inwardly, not outwardly. It is stated in Al-Nihaya: there is a problem here: the one for whom we have judged winning on account of his Islam, why do we not judge his Islam? The answer given is that we may judge him winning in the hereafter even though the rulings of Islam in this world do not apply to him, like one whom the call has not reached.
Those who say his Islam is not valid argued with the Prophet's saying (peace be upon him):
"The pen is lifted from three: the child until he reaches puberty, the insane until he regains his mind, and the sleeper until he wakes up."Hadith declared hasan
They said: it is a word by which the rulings are established concerning him, so nothing from him is valid, like the gift, the sale, the manumission and the acknowledgment; he is not legally accountable, so his Islam is not valid, like that of the insane and the sleeper; before majority he is under the ruling of the child who does not understand what he says, and his words are idle; and were his Islam valid, his apostasy would be valid.
Those who hold his Islam valid answered: he is among the people of "There is no deity but Allah", and Allah has forbidden the Fire to whoever said "There is no deity but Allah", and whoever said it will enter Paradise. He is born upon the fitra (the original disposition) upon which Allah originated His servants: when he speaks the word of Islam, he speaks by the dictate of the fitra, and the fitra and the word did their work. The Prophet (peace be upon him) indicated this meaning in his saying: "Every newborn is born upon the fitra"; and in one wording: "upon this religion; then his parents make him a Jew, a Christian or a Magian, until his tongue expresses itself, whereupon he is either grateful or ungrateful." The end set is the expression of his tongue, that is, its declaration: when his tongue expresses it, he is, by the text, either grateful or ungrateful. And when he reaches the age of discernment and understands what he says, he has will, choice and speech through which reward follows, even if punishment is deferred until after majority; for the absence of valid causes of punishment does not entail the absence of valid causes of reward: the boy's pilgrimage, purity, prayer, fasting, charity and remembrance are valid and he is rewarded for them, without being punished for neglecting them; the door of reward therefore does not depend on majority, and no legal evidence has invalidated the boy's words absolutely; rather the legal evidences require taking his words into account overall.
Allah indeed commanded putting orphans to the test, that is, questioning them about their contracts and dealings; hence the view of the majority is that it takes place with his permission in concluding the contract, without his needing permission in the negotiation, followed by his guardian's contract. Abdallah ibn al-Zubayr, the people of Medina and Ahmad in one of the narrations accepted the testimony of children against one another in their wounds when they are alone. A number of jurists held valid the boy's bequest, his divorce, his zihar and his ila'; boys have never ceased to act in the affairs of their guardians and others, and their word is accepted in establishing the causes that entail the lawful and the unlawful; and intercourse with the slave girl and the wife relies upon the boy's word. The Lawgiver therefore did not invalidate all of the boy's words. Upon contemplating the shari'a, taking his words into account is more frequent than invalidating them; they are only invalidated in what entails harm to him, such as acknowledging the punishments and rights; as for what is pure benefit for him in this world and the hereafter, such as Islam, taking his word into account is more fitting than invalidating it, for the very foundations of the shari'a testify to considering it.
Moreover, Islam is pure worship, obedience to Allah and drawing near to Him, and majority is not a condition of its validity, unlike his pilgrimage, fasting, prayer and recitation. Allah called His servants to the abode of peace and made Islam its path, and made whoever does not answer His call one of the people of Hell and of the painful punishment; how could it be permitted to prevent the boy from answering the call of Allah while he hastens and rushes toward it and treads its path, and to compel him to the path of the people of Hell and to being with them, to judge him for the Fire and to close the path of salvation before him while he flees to Allah from it? That is among the most impossible of impossibilities. And it is the consensus of the Companions: Ali (may Allah be pleased with him) embraced Islam while he was a boy and used to boast of it, saying: "I preceded you all to Islam, as a boy who had not yet reached the age of maturity." For this reason more than one of the successors and of those after them said: the first of the men to embrace Islam was Abu Bakr, of the boys Ali, of the women Khadija, of the slaves Bilal, and of the clients Zayd. Urwa ibn al-Zubayr said: Ali and al-Zubayr embraced Islam while they were two boys of eight years; Abdallah ibn al-Zubayr pledged allegiance at seven or eight years of age, and the Prophet (peace be upon him) laughed upon seeing him. Ibn Abbas (may Allah be pleased with them both) said: my mother and I were among the weakest in Mecca, and the Prophet (peace be upon him) died while I had not yet had a nocturnal emission; the Prophet never rejected the Islam of anyone among the boys; rather he accepted the Islam of the young and the old, the free and the slave, the male and the female; neither he, nor any of his successors, nor any of his Companions ever ordered a boy who had embraced Islam before majority, upon reaching majority, to renew his Islam, and this was never known in Islam.
As for his saying (peace be upon him) "The pen is lifted from three", the Prophet did not intend by it the invalidity of his Islam, his remembrance, his recitation, his prayer or his fasting, for he did not report that the pen of reward is lifted from him; the meaning of the hadith is that the pen of sinning is lifted and no offense is written against him; and Islam is the greatest of good deeds, it is for him, not against him: how could the lifting of the pen from the boy be understood to mean his nullity and lack of consideration, when Islam is for him and not against him, and makes him happy in this world and the hereafter? (Ahkam ahl al-dhimma, 2/901, 911.)