Are Children Conceived through Zina Ascribed to Their Fathers?

The overwhelming majority of jurists agree that children born of illicit intercourse are not affiliated to their biological fathers; such affiliation was confined to pre-Islamic times, according to a report from ʿUmar ibn al-Khaṭṭāb—though the Companions differed among themselves on the point.

A small minority, however, maintained that a child conceived through zina during Islam may be attached to the man who committed the act.

All schools concur that a newborn cannot be attributed to the marital bed in less than six lunar months—whether that period is counted from the marriage contract or from actual cohabitation. They also agree that paternity is affirmed if the child is born any time from the moment of cohabitation up to the minimum term of pregnancy, even if the husband had thereafter separated from, or abstained from, his wife.

They then disagreed over the longest gestation that still permits affiliation:
• Mālik: five years;
• some Mālikīs: seven;
• al-Shāfiʿī: four;
• the Kufan jurists: two;
• Muḥammad ibn al-Ḥakam: one;
• Dāwūd: six months.
The matter, they say, must be referred to custom and empirical observation. Ibn ʿAbd al-Ḥakam and the Ẓāhirīs consider the shorter periods closer to normal experience, arguing that legal rulings should rest on what is customary, not on rare or perhaps impossible occurrences.

Mālik and al-Shāfiʿī further hold that if a man marries a woman but has not yet consummated the marriage—or consummates it only after some delay—and she gives birth six months after the contract (not after consummation), the child is not affiliated to him. Paternity is established only when the birth occurs six months or more after actual intercourse.

Abū Ḥanīfah, by contrast, regards the mere existence of the marriage contract as a “bed” (firāsh); consequently the child is ascribed to the husband. Mālik’s evidence is that no “bed” exists without the possibility of physical intimacy, which begins only upon consummation. Abū Ḥanīfah relies on the general wording of the Prophet’s statement, peace and blessings be upon him: “The child belongs to the bed,” treating it as a legal act of devotion that gives precedence to lawful over unlawful intercourse when establishing lineage.

Under this heading they also disputed whether lineage may be proven by means of physiognomy (qāfa). This arises when two men have intercourse, during the same state of purity, with a woman who is either their slave or their wife; it may also arise with a foundling claimed by two or three men.

Among the Arabs, qāfa specialists were people skilled in discerning the subtle marks of physical resemblance. From the jurists of the provinces, Mālik, al-Shāfiʿī, Aḥmad, Abū Thawr, and al-Awzāʿī accepted qāfa as evidence. The Kufan scholars and most Iraqi jurists rejected it, ruling that when two men claim the same child—and neither has a marital bed for him, as in the case of a foundling, or when one woman may serve as the “bed” for each of them, such as a slave-girl or a free woman whom both men lawfully cohabit within the same purity—the child is shared between them. According to the majority of those who hold this view, a child can have no more than two fathers; Muḥammad, the companion of Abū Ḥanīfah, allowed up to three if all lay claim. The author dismisses this as incoherent and contrary to both reason and transmitted texts.

Those who cite qāfa rely especially on what Mālik narrated from Sulaymān ibn Yasār: ʿUmar ibn al-Khaṭṭāb used to affiliate pre-Islamic children to whoever claimed them once Islam had been established. Two men came, each asserting that a certain woman’s child was his. ʿUmar summoned a qāfa expert, who examined the child and said, “The two men share in him.” ʿUmar struck the expert with his whip, then called for the woman