Islamic Fiqh > Marriage and family > Lian (mutual imprecation) > Second condition: denying the child immediately
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Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
Whoever says "on the contrary, I committed adultery, so the child is the fruit of adultery": the ruling on the child, in negation as in attribution, belongs to the father and not to his mother; likewise, its negation through the imprecation depends on the father alone (Al-Hawi al-Kabir, 11/74). The jurists agree: when the husband denies the child's lineage after birth and invokes the li'an, the lineage is negated and the child is attached to its mother. Abu Bakr al-Jassas (may Allah have mercy on him) states: the jurists agreed that when he denies his wife's child, he invokes the li'an, the child is attached to its mother, and his paternal lineage is negated (Ahkam al-Qur'an, 5/141).
They differ, however, over the timing of the negation of the child: must he negate him immediately after birth, so that if he stays silent until the congratulations arrive, negation is no longer permitted to him? Or is negation possible as long as the woman remains within the period of lochia (nifas)? Or is there no fixed time for it? And is the path of negating the child one of juristic reasoning (ijtihad) and predominant conjecture, according to most jurists?
Imam Abu Hanifah (may Allah have mercy on him) holds that no time is fixed for it: it is a matter that requires reflection, and thus requires a time for reflection; and it varies with persons and circumstances, so that fixing a moment becomes impossible; custom then serves as the criterion: the acceptance of congratulations for the child, the purchase of the implements of childbirth, or the lapse of a period during which one customarily does so; negation is therefore no longer valid after that. Thereby the notion of immediacy loses its meaning, for reflection and deliberation are not accomplished in an instant. On this basis, an absent husband who learns that his wife has given birth without having knowledge of the birth until he returns, or to whom the news arrives while he is absent, may negate, according to Abu Hanifah, for the duration of the congratulations and the purchase of the implements of childbirth; if a period lapses during which he could have negated the child, and he accepts the congratulations or there appears from him what shows that he is not negating him, he can no longer negate him; fixing a time has no textual basis, and only the manifestation of satisfaction with the child and the like of it is taken into account (Ahkam al-Qur'an, 5/141; Bada'i' al-Sana'i', 3/246; 'Umdat al-Qari, 20/302; Al-Bahr al-Ra'iq, 4/128; Al-Jawharah al-Nayyirah, 4/569, 570; Al-Lubab, 2/140).
The two companions of Abu Hanifah, Abu Yusuf and Muhammad, hold that if he denies the child during the period of lochia, which is forty days, his negation is valid; the state of lochia is the state of birth: as long as she remains in the state of birth, his negation is accepted. Abu Bakr al-Jassas (may Allah have mercy on him) states: as for fixing the time for negating the child, its path is juristic reasoning and predominant conjecture; if a period lapses during which he could have negated the child, and he accepts the congratulations or there appears from him what shows that he is not negating him, he can no longer negate him according to Abu Hanifah, fixing a time having no textual basis, and only the manifestation of satisfaction with the child and the like being taken into account.
It is objected: since his silence, in other rights, does not count as satisfaction waiving them, the same would hold for negating the child. The answer: all agreed that silence on this matter, once a period of time has lapsed, counts as assent to the statement; they differ only over the period, many fixing its term at forty days, without any proof of that; and taking this period into account is no sounder than taking into account something shorter. Abu Yusuf and Muhammad hold that forty days is the duration of most lochia, and that the state of lochia is the state of birth, so that as long as she remains in the state of birth, his negation is accepted. This is nothing, for the negation of the child is not tied to the lochia (Ahkam al-Qur'an, 5/141; Bada'i' al-Sana'i', 3/246; 'Umdat al-Qari, 20/302; Al-Bahr al-Ra'iq, 4/128; Al-Jawharah al-Nayyirah, 4/569, 570; Al-Lubab, 2/140).
The majority of jurists, namely the Malikis, the Shafi'is on the most manifest opinion of the later school (jadid), and the Hanbalis, hold that promptness is a condition for negating a pregnancy or a child from the husband; if he learns of the pregnancy or the birth, stays silent about negating it after knowing, and then wishes to negate through the li'an, that is not permitted to him and he undergoes the punishment for slander.
The Malikis specify: if the pregnancy is evident and manifest in the wife, and the husband stays silent for a while after knowing of it, without being limited to any period, and then wishes to negate it through the li'an, he is not permitted the imprecation, for custom belies him; his silence admits no interpretation other than satisfaction, for had he wished to negate it, he would not have stayed silent. When he stays silent while able to negate and with no excuse, that counts as his acknowledgment: the child is attached to him and she remains his wife, whether she is a Muslim or a woman of the Book; and the punishment is inflicted upon the Muslim woman in every case, whether his silence lasted long, like a month, or briefly, like a day or two, unless he stayed silent for an excuse. This is provided that his silence after knowledge is established by confession or proof; his knowledge of the pregnancy, moreover, is known only from his word (Al-Ishraf 'ala Nukat Masa'il al-Khilaf, 3/528, no. 1359; Al-Bahjah fi Sharh al-Tuhfah, 1/534; Hashiyat al-Sawi 'ala al-Sharh al-Saghir, 6/14, 19).
The Shafi'is, on the most manifest opinion of the later school, hold that negating a child's lineage takes place immediately, for it was legislated to repel an established harm; it therefore takes place at once, like rescission for defect and the option of pre-emption. In the earlier school there are two opinions: the first, negation is valid for up to three days; the second, he may negate whenever he wishes, and his right lapses only by his own waiver. The negation intended here is to appear before the judge and state "this child, or this existing pregnancy, is not mine," together with the accepted conditions; as for the li'an, it may be delayed.
The mutual imprecator is excused for delaying negation, on the view of immediacy, for an excuse: the news reaches him at night and he waits until morning; he is hungry and eats; he is unclothed and dresses. If he is imprisoned, or sick, or fears the loss of his property, he sends to the judge asking him to send a deputy before whom he may invoke the li'an, or to inform him that he is resolved to negate; if he does not, his right lapses. If sending is impossible for him, he calls witnesses if able; if he does not witness although able, his right lapses. The absent man has the right to negate before the judge if he finds him at his post; if the judge is present, he may delay until his return, provided he hastens to it as much as possible, with witnessing; otherwise not, on the sounder view. With no excuse, his right of negation lapses, on the sounder view, and the child is attached to him.
He also has the right to negate a pregnancy, since it is reported in the two Sahihs that Hilal ibn Umayyah invoked the li'an concerning a pregnancy (narrated by al-Bukhari and Muslim); and the mutual imprecator may die before the birth, so that the child is attached to him. He also has the right to await the delivery in order to invoke the li'an upon certainty, for a presumed pregnancy may be only wind; unlike awaiting the delivery in hope of death: one who would say "I knew it was a child, and I delayed in hope of the delivery so that it would be stillborn and I would thereby be spared the li'an," his right of negation lapses, by his negligence despite his knowledge.
One who delayed negating a child's lineage and says "I did not know of the birth" is believed on his oath if he was absent and the news did not spread, for the apparent state favors him; but if it spread and became widely known, he is not believed. Likewise the man who was present, for a period during which his ignorance of the birth was possible, for example if they lived in two separate places where concealment from him was possible, the truthfulness of his statement being plausible; unlike what does not allow it, as when they lived in a single dwelling and a period excluding concealment has lapsed: he is not accepted, for that contradicts the apparent state.
If he says "I did not believe the one who informed me of the birth," while the informer is of those whose testimony is not accepted, such as a child or a notorious sinner (fasiq), he is believed on his oath; if the informer is of those whose testimony is accepted, even a slave or a woman, he is not accepted.
If he is congratulated on a child: "Enjoy your child" or "may Allah make him a righteous child," and he answers the speaker with "Amin" or "yes," or any expression implying acknowledgment, such as "may Allah answer your prayer," negation becomes impossible for him and the child is attached to him, for that implies satisfaction with him. However, if another child is known to him and he claims that the congratulations or the ameen were intended for that one, negation is permitted to him; unlike the case where this one is indicated to him with "may Allah make him beneficial to you" and he answers "Amin" or the like: negation is then not permitted to him, for what has preceded. If he answers with an expression that does not imply acknowledgment, saying to the speaker "may Allah reward you" or "may Allah bless you," negation does not become impossible for him, for the apparent meaning is that he intended to repay the supplication with a supplication. If he says, after knowing of the child, "I did not know the lawfulness of the li'an or its immediacy," he is believed if he is a commoner, even if he is not a recent convert to Islam, or if he was raised in a desert far from the scholars, by analogy with the option of rescission; unlike the case where he is a jurist (Al-Tanbih, p. 191; Rawdat al-Talibin, 5/690, 693; Al-Najm al-Wahhaj, 8/115, 116; Mughni al-Muhtaj, 5/77, 78; Tuhfat al-Muhtaj, 9/741, 744; Nihayat al-Muhtaj, 7/142, 143; Al-Dibaj, 3/543, 545).
Among the Hanbalis, Ibn Qudamah (may Allah have mercy on him) reports the question: "if he negates the pregnancy in his imprecation, it does not leave him until he negates it at her delivery and invokes the li'an at that time." Our companions differ concerning one who invoked the imprecation against his wife while she was pregnant and denied her pregnancy in his imprecation. Al-Khiraqi and a group say: the pregnancy does not leave by his negation before delivery, nor does it leave as long as he has not invoked the li'an against her after delivery; it is then that the child leaves. This is the view of Abu Hanifah and a group of the people of Kufa: the pregnancy is indeed not certain, for it may be wind or something else; its negation therefore becomes conditional upon its existence; and the li'an cannot be made conditional upon a condition.
Malik, al-Shafi'i and a group of the people of the Hijaz say: negating the pregnancy is valid and the lineage leaves it, arguing from the hadith of Hilal, who denied his wife's pregnancy, and the Prophet negated the child from him, attaching him to the first, with no ignorance possible that it was a pregnancy; hence the Prophet's statement: "Watch her: if she delivers such and such...". Ibn Abd al-Barr states: the reports establishing the validity of this view are numerous, and he cited them. Moreover, the pregnancy is presumed through signs pointing to it; this is why specific rulings were established for the pregnant woman, distinguishing her from the one whose pregnancy is impossible: maintenance, breaking the fast, the suspension of the punishment in her case, the postponement of retribution concerning her, and other matters too long to enumerate; the attachment (istilhaq) of the pregnancy is therefore valid, and it becomes like the child after its birth. This is the correct view, for it accords with the apparent meaning of the hadiths; whatever contradicts the hadith is not given any weight, whatever it may be.
Abu Bakr states: the child leaves with the ceasing of the marital bed, with no need to mention him in the li'an, arguing from the apparent meaning of the hadiths, in which neither the negation of the pregnancy nor any allusion to it appears, as we have mentioned. As for one who says "the child does not leave except by negating him after delivery," he will need, in order to negate him, to repeat the li'an after the delivery.
Abu Hanifah and those who follow him say: if he invokes the li'an against her while she is pregnant, and she then gives birth, the child is necessarily attached to him and he cannot negate him; for the li'an occurs only between two spouses, and she had left the marriage through her li'an during the state of pregnancy: he would thus be compelled to a child that is not his, and the door of negation among children of adultery would be closed, whereas Allah has opened a way to it that it is not permitted to close. Marital status is taken into account only in the state to which he attributed the adultery in this case: the child she will deliver will be attached to him if he does not negate him, and he therefore needs to negate him; she was a wife in that state, and he therefore owns the negation of her child. Allah knows best.
Chapter: if the pregnancy is attached to him, the one who says "its negation is not valid" says "its attachment is not valid," and this is explicitly transmitted from Ahmad; the one who admits its negation says "its attachment is valid," and this is the madhhab of al-Shafi'i: the pregnancy is deemed to exist, the proof being the obligation of its maintenance and the suspension of inheritance; acknowledgment of its existence is therefore valid, as with the newborn; and once he has attached it, he can no longer negate it, as if he had attached it after delivery. The one who says "its attachment is not valid" objects: were it valid, it would be attached to him by his mere failure to negate it, like the newborn; but that is denied to him by consensus. Moreover, the ambiguous situation (shubhah) has an effect in attachment, the proof being the hadith of the imprecation; it is, however, specific to what follows delivery: the validity of attachment is therefore specific to it. On this view, if he attached it and then negates it after delivery, that is permitted to him; but if he stayed silent without negating it or attaching it, nothing is attached to him according to the view known to each of us, for his omission may be explained by the fact that existence is not certain unless he invokes the li'an against her; Abu Hanifah, however, attached the child to him as we have said above.
Chapter: if his wife delivers a child and he stays silent about negating him while able, the lineage is attached to him and later negation is no longer permitted to him; this is al-Shafi'i's view. Abu Bakr says: it is not measured by three (days), but by what custom has established: if it was night, until morning and until people disperse; if he was hungry or thirsty, until he eats or drinks; or that he sleeps if drowsy; that he dresses, saddles his mount and rides; that he prays if the prayer arrives at its time; that he secures his property if unsecured; and similar tasks among his occupations. If he delays after all that, negation is no longer possible for him.
Abu Hanifah says: he may delay negation by a day or two, by juristic preference (istihsan), for negation immediately after birth is burdensome, and it was fixed at two days on account of its brevity. Abu Yusuf and Muhammad say: it is measured by the duration of the lochia, for they run, in the ruling, in the course of birth. It is reported from 'Ata' and Mujahid that negation is possible for him as long as he has not acknowledged the child, like the state of birth. Our view: it is an option meant to repel an established harm; it therefore takes place immediately, like the option of pre-emption. The Prophet's statement "The child (belongs to) the bed" is general, less what we have agreed upon with the established Sunnah; what goes beyond that remains within the general scope of the hadith; and what Abu Hanifah mentioned falls away by analogy with rescission for defect and pre-emption; his measuring it by the duration of the lochia is an arbitrary preference without proof; and 'Ata''s position also falls away for what we have mentioned. Retribution does not depend on it, for it seeks the securing of a right, not the repelling of harm; nor the pregnancy, for its harm has not materialized.
This being established, is the option of negation measured by the session of gaining knowledge, or by the ability to negate? Two ways, by analogy with the claim of pre-emption: if he delayed his negation beyond that, then claims ignorance of the birth while his truthfulness is possible were he in a place where it could escape him, such as another quarter, his statement is accepted with his oath, for the original state is ignorance; if that is not possible, as when he lived with her in the same dwelling, it is not accepted, for it can hardly escape him. If he says "I knew of the birth, but I did not know that I had this right, or I knew that but did not know that it had to be exercised immediately," and he is among those in whom it could be hidden, like most people, it is accepted from him, for this is something hidden from people, as if he were a recent convert to Islam; if he is a jurist, it is not accepted from him, for it cannot be hidden from him; it may however be accepted from him, for much of the rulings may be hidden from a jurist. Our companions say: it is not accepted from the jurist, and it is accepted from one raised in the desert or recently converted to Islam; among the rest of the common people, two ways.
If he has an excuse preventing him from attending to negate, such as sickness, imprisonment, being occupied with securing property whose loss he fears, or being pursued by a creditor whose strength or absence he fears, one considers: if its duration is short and he delays until he is able to attend and his excuse vanishes, his negation does not lapse, for he is like one who learned at night and delayed until morning; if it is prolonged and he can send to the judge asking him to send someone who will exact from him the li'an and the negation, and he does not, his negation lapses; if sending is impossible for him, he calls witnesses against himself that he negates his wife's child; if he does not, his option lapses, for being unable to negate, witnessing stands in his place, just as a sick man establishes the fay'ah by his word, in place of the fay'ah involving the carnal act.
If he says "I did not believe the one who informed me," one considers: if the news is widespread and known, his statement is not accepted; if it is not, and the informer is of well-known probity, it is not accepted; otherwise, it is accepted. If he says "I did not know that it was required of me," his statement is accepted, for it is something hidden; if he knew of it while absent and could travel but occupied himself with something else, his option does not lapse; if he remained without necessity, it lapses, for he delayed without excuse; and if he had a necessity preventing him from traveling, it is as said before. If he delayed his negation without excuse and said "I delayed my negation in hope that he would die, so that it would be concealed for him and for me," his option lapses, for he delayed his negation while able, without excuse.
Chapter: if he is congratulated on the child and he assents to the supplication, the child is attached to him according to the view of all; if he says "may Allah reward you well," "may Allah bless you" or "may Allah grant you the like of it," the child is attached to him, and this is Abu Hanifah's view; al-Shafi'i says: nothing is attached to him, for he rewarded the speaker's intention; and the statement "may Allah grant you the like of it" is neither an acknowledgment nor does it imply one. Our view: it is the customary answer of the satisfied person; it is therefore an acknowledgment, like assenting to the supplication; and his silence is likewise an acknowledgment, as Abu Bakr mentioned, silence being a consent indicating satisfaction in the right of the virgin and in other situations, all the more so here. In every case where the child is attached to him, later negation is not permitted to him, according to a group of the people of knowledge: al-Sha'bi, al-Nakha'i, 'Umar ibn Abd al-Aziz, Malik, al-Shafi'i, Ibn al-Mundhir and the proponents of reasoning (ashab al-ra'y). Al-Hasan states: he may invoke the li'an for the negation as long as his mother is still with him, the child becoming hers even if he acknowledged him; and the view of the majority is preferable: he acknowledged him, he can therefore no longer deny him, as when his mother leaves him; he acknowledged a right against himself, and his denial is not accepted, as with other rights (Al-Mughni, 8/60, 63; Al-Mubdi', 8/96; Kashshaf al-Qina', 5/470, 471; Sharh Muntaha al-Iradat, 5/574, 575; Manar al-Sabil, 3/150, 151).
It is required, for the negation of the child to be valid, that the husband not have acknowledged, before the negation, explicitly or implicitly, that this child is his: by saying "this is my child" or "this child is mine," or by accepting congratulations on the newborn while staying silent, as was seen in the previous condition, together with the disagreement surrounding it. If he acknowledged, or stayed silent about negating while able, the lineage is established against him according to the majority of jurists, as was seen in the previous condition.
Imam al-Kasani (may Allah have mercy on him) states: among these conditions is that nothing constituting, on the husband's part, an acknowledgment of the child's lineage, whether explicit or implicit, precede the negation; if it precedes, the lineage is not cut off from the father, for lineage, once established by acknowledgment, admits no negation whatsoever: when he acknowledged it, it became established; and lineage is the child's right, which the father cannot relinquish through negation.
Explicit acknowledgment is saying "this is my child" or "this child is mine"; implicit acknowledgment is staying silent when congratulated, without answering the one who congratulates, for a reasonable person does not customarily stay silent when congratulated on a child that is not his: silence and this situation thus constitute a recognition of lineage, and he can no longer negate it after that recognition (Bada'i' al-Sana'i', 3/247; Kashshaf al-Qina', 5/471; and earlier sources). Likewise, if he acknowledges the child after the li'an, the lineage is attached to him with no disagreement whatsoever among the people of knowledge. Imam Ibn Abd al-Barr (may Allah have mercy on him) states: the scholars do not differ over the fact that the mutual imprecator, if he acknowledges the child, undergoes the punishment, the child is attached to him, and he inherits from him; and the child of the adulteress is, according to a group of scholars, like the child of the imprecated woman; each of the two rests on its own basis (Al-Tamhid, 15/47).
The jurists differ concerning the child being negated: must he be alive at the time of the li'an, or is that not required, the li'an being valid even if the child has died?
The Hanafis hold that it is required that the child be alive at the time lineage is cut off, which is the time of separation; if he is not alive, his lineage is not cut off from the father: even if she delivers a child who dies, and the husband then denies him by invoking the li'an, the child is attached to him; for lineage becomes fixed by death and no longer admits severance; but he invokes the li'an because of the slander constituted by negating the child, the severance of lineage not being a necessary consequence of the li'an. Likewise, if she delivers twin boys, one of them stillborn, and he negates both of them through the li'an, both children are attached to him, for what has preceded. Likewise, if she delivers a child whom he negates, and the child then dies before the li'an: the husband invokes the li'an and the child is attached to him, for what has preceded. Likewise, if she delivers two twins whom he negates, and they then die before the li'an or are killed: he invokes the li'an and both are attached to him; for lineage, after death, admits no severance, and he invokes the li'an for what has preceded; likewise, if he negates them and one of the two dies before the li'an or is killed, both children are attached to him; for the lineage of the dead one cannot be cut off, being fixed by death; and so too the lineage of the living one, for they are twins (Bada'i' al-Sana'i', 3/247).
The majority of jurists, namely the Malikis, the Shafi'is and the Hanbalis, hold that it is not required, for the validity of the li'an, that the child be alive at the time of the li'an: negating a dead child is permitted, for his lineage does not cease with death; one indeed says "so-and-so's child has died, and this is so-and-so's child's grave": negation is therefore required after death, as during life. The Shafi'is answer the objection "what is the use of negating him after his death?": the use is to be relieved of the burden of preparing his funeral. If the child dies after the negation, attaching him remains possible for him, as during life, and he inherits from him, with no regard for the suspicion cast upon him in that regard; and if he attaches him and then negates him, he does not leave him definitively (Al-Najm al-Wahhaj, 8/115; Mughni al-Muhtaj, 5/77; Al-Dibaj, 3/543).
Imam Ibn Qudamah (may Allah have mercy on him) states: if one of the twins dies, or both die together, he may invoke the li'an for the negation of their lineage; al-Shafi'i holds the same. Abu Hanifah says: the lineage of the living one is attached to him, and he invokes the li'an only to be relieved of the punishment; for the dead one cannot validly be negated through the li'an: his lineage has already ceased with his death, so there is no need to negate it through the li'an, like a wife who has died: he does not invoke the li'an against her after her death, the marriage having ceased, it already having been severed; and if the dead one does not leave him, the living one does not leave him either, for they are of a single pregnancy. Our answer: the dead one, for his part, is attributed lineage, to the point that one says "the son of so-and-so," and his funeral preparation and burial are owed by him; negating his lineage and being relieved of that burden are therefore possible for him, as with the living one, just as if the dead one had a child of his own (Al-Mughni, 8/58; Al-Mubdi', 8/87).
Qadi Abd al-Wahhab, the Maliki (may Allah have mercy on him), states: if she delivers twin boys and he negates both of them, then one of the two dies before the imprecation, he may invoke the li'an and negate their lineage. Abu Hanifah says: negating the lineage of the dead one is not valid; it is attached to him; and if the lineage of the dead one is attached to him, that of the living one is attached as well. Our proof: he needs to negate the lineage of the dead one as he needs to negate that of the living one, for lineage is not annulled by death; this is shown by the fact that the dead one may die leaving a child who reverts to the husband even without his having negated the dead one; that being so, the need to negate his lineage is established, and it is therefore permitted for him to invoke the li'an.
Preliminary question: if he negated the child through the li'an, the child died, and he then acknowledged him after his death: if the deceased left a child or a grandchild, it is attached to him; if he left neither child nor grandchild, the punishment is inflicted and the child is not attached to him. Al-Shafi'i says: he is attached to him and he inherits from him, as if he were alive. Our proof: his acknowledgment contains two things. The first: his lie, a meaning regarding which he is not suspected of any gain; the punishment is therefore inflicted. The second: his right to inherit from the child, with no need whatsoever for the acknowledgment; it is therefore not accepted, suspicion and the absence of need standing against it. This differs if there exists a child of the deceased, for the need to acknowledge his lineage then exists (Al-Ishraf 'ala Nukat Masa'il al-Khilaf, 3/525, no. 1354, 1355).
The jurists agree that there is no mutual inheritance between the mutual imprecator and the child whose lineage he negated through the li'an: if the mutual imprecator dies, the negated child does not inherit from him, with no disagreement among the jurists; likewise, the child negated through the li'an, if he dies leaving property, is not inherited by the mutual imprecator who negated him, with no disagreement; his paternal agnates do not inherit from him either; his mother inherits from him according to the majority of jurists.
Imam Ibn Qudamah (may Allah have mercy on him) states: when a man invokes the li'an against his wife, negates her child, and the judge separates them, the child leaves him and his right of agnation (ta'sib) on the side of the imprecator is cut off: he and his agnates do not inherit from him; his mother and the fixed-share heirs take their shares; mutual inheritance between the two spouses is cut off; we know of no disagreement among the people of knowledge regarding this whole matter (Al-Mughni, 6/224).
Imam al-Zarkashi (may Allah have mercy on him) states: when a man accuses his wife of adultery, the child leaves him, and he invokes the li'an against her, the child leaves him according to its conditions; neither he nor his agnates inherit from him; his mother and the fixed-share heirs take their shares without dispute (Sharh al-Zarkashi, 2/277, 278). The proof that the mother inherits from him: 'Amr ibn Shu'ayb reports from his father, from his grandfather, that the Prophet said:
The inheritance of the child of the imprecated woman belongs to his mother and to her heirs after herSahih hadith, narrated by Abu Dawud (2907)
Wathilah ibn al-Asqa' reports that the Prophet said:
A woman receives three inheritances: her freed slave (atiq), her foundling (laqit), and the child against whom she invoked the imprecationWeak hadith, narrated by Abu Dawud (2906), al-Tirmidhi (2115) and Ahmad (17022)
They differ, however: does she inherit from him as a mere mother? Or as mother and father, receiving the fixed share and the remainder by agnation? Or does she receive the fixed share while the remainder goes to the nearest maternal agnate? Two opinions. The first: she inherits from him as a mother, taking her right, the remainder going to his uterine brothers if he has no agnates of his own, by reason of the absence of sons. This is the view of the majority of jurists: the Hanafis, the Malikis, the Shafi'is and the Hanbalis in their madhhab, with some detail among them. Malik reports that it reached him that 'Urwah ibn al-Zubayr used to say, concerning the child of the imprecated woman and the child of adultery: when he dies, his mother inherits her fixed share according to the Book of Allah, and his uterine brothers their rights; the remainder goes to the clients (mawali) of his mother if she is a freedwoman; if she is a free Arab woman, she inherits her share, his uterine brothers theirs, and the remainder goes to the Muslims. Malik states: the same reached me from Sulayman ibn Yasar; and upon this I found the people of knowledge of our land. Abu 'Umar (Ibn Abd al-Barr, may Allah have mercy on him) states: this is the madhhab of Zayd ibn Thabit: he made the child of the imprecated woman inherit like any other, did not make his mother's agnates his agnates, and assigned the surplus after the mother's share to the public treasury (bayt al-mal), unless he had uterine brothers: these then receive their rights, as if he were not the child of the imprecated woman, the remainder remaining in the bayt al-mal. Ibn 'Abbas holds on this a position like that of Zayd ibn Thabit; and this is the view of the majority of the people of Madinah: Sa'id ibn al-Musayyab, 'Urwah, Sulayman, 'Umar ibn Abd al-Aziz, Ibn Shihab, Rabi'ah, Abu al-Zinad, Malik and al-Shafi'i with their companions; it is the view of Abu Hanifah, his companions and the people of Basrah; except that Abu Hanifah, his companions and the people of Basrah prefer the uterine kin (dhu al-arham) to the bayt al-mal: the surplus after the fixed shares of the mother and her uterine sons is returned to the mother and her uterine sons; unless the mother is a freedwoman, in which case the surplus goes to her clients (Al-Istidhkar, 5/377, 378; Al-Tamhid, 15/45, 46; 'Umdat al-Qari, 23/249; Hashiyat Ibn Abidin, 6/777).
The second opinion: his mother, as an agnate, inherits from him like a mother and a father: she takes her fixed share and the remainder by agnation; failing that, her maternal agnates. It is a transmission from Imam Ahmad, favored by Ibn al-Qayyim, based on the hadith of 'Amr ibn Shu'ayb, from his father, from his grandfather, that the Prophet "assigned the inheritance of the child of the imprecated woman to his mother and to her heirs after her" (sahih hadith, narrated by Abu Dawud (2907)). Makhul reports it from the Prophet as a mursal report. Wathilah ibn al-Asqa' reports that the Prophet said: "A woman receives three inheritances: her freed slave, her foundling, and the child against whom she invoked the imprecation" (weak hadith, narrated by Abu Dawud (2906), al-Tirmidhi (2115) and Ahmad (17022)). Ubaydallah ibn Ubayd ibn Umayr states: I wrote to a friend of mine in Madinah, of the Banu Zurayq, asking him about the child of the imprecated woman: to whom had the Messenger of Allah assigned him? He wrote to me: I asked, and I was informed that he had assigned him to his mother, she standing in the position of his father and his mother; Abu Dawud transmitted these reports. She indeed stood in place of the father and the mother in the attribution of lineage; she therefore stands in their place in receiving his inheritance; and the maternal agnates are nearer to her, so that they do not inherit alongside her, as the paternal kin do not inherit alongside the father. It is reported "that 'Ali and Ibn Mas'ud used to make the mother his agnate: she then received the entire property; if he had no mother, his property went to her agnates"; al-Hasan and Makhul hold the same view; a similar statement is also reported from al-Sha'bi, Qatadah, Ibn Sirin, Jabir ibn Zayd, 'Ata', al-Hakam, Hammad, Sufyan al-Thawri, al-Hasan ibn Salih, Sharik, Yahya ibn Adam and Ahmad ibn Hanbal (Al-Mughni, 6/225; Al-Kafi, 2/529; Zad al-Ma'ad, 5/400; Sharh al-Zarkashi, 2/278; Al-Istidhkar, 5/377, 378; Al-Tamhid, 15/45, 46).
Ibn al-Qayyim (may Allah have mercy on him), after citing these reports, states: these reports accord with pure analogy; lineage belongs in principle to the father; when lineage is cut off from his side, it passes to the mother, just as patronage (wala') belongs in principle to the father's manumitter; if the father is a slave, it belongs to the mother's manumitter; if the father is subsequently freed, patronage passes from the mother's clients to him and returns to its origin. It is parallel to the case of the mutual imprecator who denies himself and attaches the child: lineage and the right of agnation then revert from the mother and her agnates to him. This is pure analogy, required by the hadiths and the reports; it is the madhhab of the scholar of the nation and its learned man, 'Abdallah ibn Mas'ud, and the madhhab of the two imams of the people of the earth of their time, Ahmad ibn Hanbal and Ishaq ibn Rahawayh; the Qur'an points to it in the subtlest and finest way: Allah made 'Isa descend from Ibrahim through his mother Maryam, who is of the very core of Ibrahim's descendants. Further elaboration will come, Allah willing, regarding the Prophet's judgments and his rulings on inheritance.
It is objected: what do you make of his statement in the hadith of Sahl, narrated by Muslim in his Sahih, at the end of the account of the imprecation:
Then the Sunnah became established that he inherits from her and she inherits from him what Allah has prescribed for herNarrated by Muslim
The answer: we receive it with acceptance and submission, and we rule accordingly, even though it may be an interpolation of Ibn Shihab's words, which is the apparent reading; for the mother's agnation does not annul what Allah has fixed for her regarding her child in His Book; she is at most like the father, in the case where the fixed share and agnation combine in him: she necessarily takes her fixed share; if a surplus remains, she takes it by agnation; otherwise, her fixed share suffices her. We are thus, by Allah's grace and His granting of success, among those who affirm all the reports of this chapter (Zad al-Ma'ad, 5/400, 401).