He held that even were a man living at the farthest reaches of the Maghrib to contract a marriage with a woman dwelling at the farthest reaches of the Mashriq, and she then gave birth exactly six months after the contract, the child would be affiliated to him unless he disavowed it through liʿān. In this question he is purely Ẓāhirī, for he relies solely on the general wording of the Prophet—peace and blessings be upon him—who said: “The child is attributed to the marital bed.” Once the contract has been concluded, the woman becomes part of that “bed,” and he therefore treats the ruling as a devotional matter not subject to rational causation—an undeniably weak position.

Mālik’s statements within this chapter diverge on a related issue: if a husband alleges that his wife has committed adultery while at the same time acknowledging her pregnancy, three reports are transmitted from him:

1. He is liable to the hadd for slander; the child is attached to him; and no liʿān is performed.
2. He performs liʿān and thereby disowns the child.
3. The child is attached to him, yet he still performs liʿān in order to avert the hadd from himself.

The root of the disagreement is whether his admission of paternity can stand alongside the factor that necessitates denial—namely, his charge of adultery.

They also disagreed about another branch issue: if the husband produces witnesses to the alleged adultery, may he still resort to liʿān? Abū Ḥanīfah and Dāwūd said he may not, because liʿān was instituted only as a substitute for witnesses, in keeping with the Almighty’s words, “As for those who accuse their wives and have no witnesses except themselves” (Q 24:6). Mālik and al-Shāfiʿī, however, allowed liʿān, arguing that the presence of witnesses does not dislodge the presumption created by the marital bed.

Section Two: The Qualifications of the Two Parties to Liʿān

As for the qualities required of the spouses who invoke liʿān, one group held that it is permissible between any two spouses—both free, both slaves, or one free and the other enslaved; whether or not they have previously incurred the hadd; whether both are upright or only one of them; whether they are both Muslims, or the husband is Muslim and the wife a member of the People of the Book. There is no liʿān between two unbelievers unless they submit their case to a Muslim judge. This view was espoused by Mālik and al-Shāfiʿī. Abū Ḥanīfah and his companions countered that liʿān is valid only between two free, upright Muslims. In short, they restrict liʿān to those who are legally qualified to give testimony.

Those who adopt the first opinion invoke the general wording of the verse, “As for those who accuse their wives and have no witnesses except themselves” (Q 24:6), which contains no qualifying clause. The Ḥanafīs, on the other hand, contend that liʿān is a form of testimony and therefore subject to all the conditions that govern testimony, since God Himself refers to them as “witnesses” in His words, “Then the testimony of one of them shall be four testimonies in the name of God” (Q 24:6). They argue that liʿān can take place only between parties who would ordinarily incur the hadd for slander in a dispute between them. All agree that neither a slave nor an unbeliever is subject to the hadd for slander, and thus they liken those upon whom liʿān is incumbent to those who