USMANU DAN FODIYO UNIVERSITY, SOKOTO.

FACULTY OF LAW.
COURSE CODE; LAW 207.
COURSE TITLE; QURAN AND HADITH.

GROUP B PRESENTATION ON PATERNITY (NASABA)

S/N NAMES ADMISSION NUMBERS
1. ABDULFATTAH ABDULMUHSIN AJIBOLA 2310500052
2. ABDULKAREEM ABDULMAJEED BOLAKALE 2310500043
3. ABDUR-RAFIU ABDUS-SAMAD 2310500042
4. AMINU SHERIFAT YANDAYI 2310500012
5. DAUD AISHA OLUWADAMILOLA 2310500033
6. YISAU ABEEB BABATUNDE 2310500053
7. BASHIR YUSUF 2310500002
8. UMAR KHADIJA YELWA 2310500023
9. ALMISBAHU MOHAMMED BILAL 2310500003
10. AHMED AISHAH BACHAKA 2310500083
11. IBRAHIM AISHA ALKALI 2310500022
12. MOHAMMED AHMED NDAGILATI 2310500063
13. LAWAL AMINA AMMANI 2210500032
14. AMINAT SULAIMAN 2210500063
15. BAYERO FATIMA 22105000102
16. SALISU YAHYA 2310500013
17. USMAN AISHA NANA 2310500082
18. MUHAMMAD RAHAMA SHAFII 2210500052
19.
 20.

INTRODUCTION
Paternity is the legal relationship of the father with a child created by his birth in
consequence of a valid marriage contract entered into between the parents. Under Islamic law,
paternity is considered the kernel of the entire family structure and is one of the basic and most
important rights of a child on which all his/her other rights like: inheritance, guardianship and
maintenance are directly dependent and affected by his lineage. The central concern of this paper
is to bring to a position of prominence issues relating to definition of paternity and legal
authorities, presumption or determination of paternity, establishment of paternity, gestation of a
child, position of expert opinion on paternity, as well as legitimacy of child delivered after
divorce.

Definition of Paternity
Nasaba (Paternity) literally means relationship, affiliation, or connection, depending on the
context.
Technically, it is the state or condition of being a father especially a biological one.
According to Macmillan advanced learner’s dictionary, paternity is regarded as the fact of being
the father of a child. Paternity is also defined as legal relation between father and child.
The relationship of children with their parents because of their birth is called parentage.
The legitimacy of parentage depends upon the matrimonial relationship of the husband and wife
being in accord with the Islamic law. Indeed, the paternal lineage is lawfully established when
the child is born as a result of a valid marriage contract entered into between his parents.
However, the maternal relationship of the child is established in the woman who gives birth to
the child irrespective of the fact whether the woman conjugal connection with the man was
lawful or not. That is to say, if a person commits adultery with a woman and she gets pregnant
and a child is born by her, the child shall be held to belong to her alone, for the establishment of
all legal rights and liabilities.

Legal authorities

‫ "إذا أقَّر الرجل بولده َطْرَفَة عين فليس له أن ينفيه‬:‫"عن عمر بن الخطاب رضي الله عنه قال‬.
[ ‫ ]إسناده حسن‬- [ ‫رواه البيهقي‬
Umar ibn al-Khattāb (may Allah be pleased with him) said: "If a man
acknowledges his paternity of a child (even) for a moment, he has no right
to deny it (later)." [Good chain of narrators] - [Al-Bayhaqi]
Explanation
This report indicates that if a man acknowledges his paternity of a
child, he has no right to deny this paternity or the child’s attribution to him
later. This is because paternity is one of the rights that is established by
acknowledgment, and a subsequent denial or negation is not acceptable.
‫ إن امرأتي ولدت غلاما‬،‫ يا رسول الله‬:‫عن أبي هر يرة رضي الله عنه أن رسول الله صلى الله عليه وسلم جاءه أعرابي فقال‬
‫ «فأنى‬:‫ قال‬،‫ نعم‬:‫ «هل فيها من َأ ْوَرَق » قال‬:‫ قال‬،‫ حمر‬:‫ «ما ألوانها» قال‬:‫ قال‬،‫ نعم‬:‫ «هل لك من إبل» قال‬:‫ فقال‬،‫أسود‬
‫ «فلعل ابنك هذا َنَزَعُه ِعْر ٌق‬:‫ قال‬،‫ أراه عرق نزعه‬:‫»كان ذلك» قال‬
[ ‫ ]صحيح‬- [ ‫]متفق عليه‬
Abu Hurayrah (may Allah be pleased with him) reported that a Bedouin
man came to the Messenger of Allah (may Allah's peace and blessings be
upon him) and said: "My wife has given birth to a black boy." The Prophet
asked him: "Do you have camels?" He replied: 'Yes.' The Prophet asked:
"What color are they?" He replied: 'Red.' The Prophet asked: "Is any of them
gray?" He replied: 'Yes.' The Prophet asked: "From where did that grayness
come?" He said: "It might have inherited it from its ancestors." The Prophet
(may Allah's peace and blessings be upon him) said: "Perhaps this son of
yours (also) inherited it (this color) from his ancestors."
[Authentic hadith] - [Narrated by Bukhari & Muslim]
Explanation
A boy was born to a man from the tribe of Fazārah, and the color of the
baby's skin was different from that of his father and mother. The father thus
had doubts that the boy was not his child, so he went to the Prophet (may
Allah's peace and blessings be upon him) to inform him that his wife gave
birth to a black child, thus implying an accusation of adultery. The Prophet
understood what he meant and wanted to convince the man and remove his
doubt, so he made an analogy which is familiar and known to the man. He
asked him if he had camels and what their color was. He replied in the
affirmative and that they were red. He then asked him if there were any grey
camels among them, and he said: 'Yes.' The Prophet then asked him where
that different color came from. The man replied that perhaps it came by
heredity from the lineage of the animal; one of its parentages. The Prophet
(may Allah's peace and blessings be upon him) said that the case of his son
was similar to this and that there might have been a black person in the
man's ancestors, so therefore the boy inherited the color. The man was
convinced with this sound analogy, and the doubts in his mind were
removed.

‫ وِلْلَعاِهِر الَحَجر رواه البخاري‬،‫ قال النبي صلى الله عليه وسلم الَوَلُد ِلْلِفَراِش‬،‫عن عائشة رضي الله عنها‬
The Hadith of paternity, often translated as "The child belongs to the
bed (i.e., the husband) and the adulterer deserves nothing," establishes that
paternity is presumed to be the husband's in a valid marriage, and the
adulterer has no claim to the child.
 DETERMINATION OF PATERNITY
The Islamic law presumes paternity of a child from the hadith of the Prophet (peace and
blessings of Allah be upon him) which was narrated by Aisha and reported in so many hadith
books that: “Al-Walad Lil Firash Wa Lil Ahir AL-Hajar” which can be translated: “The Child
belongs to the Matrimonial Bed and the Prostitute is to be stoned”. According to Ibn Rusd, this
principle is recognized by all Muslim Jurists. Therefore, according to the aforesaid hadith, the
paternity of any child born in lawful wedlock is presumed to be child of the husband if certain
conditions are satisfied. One of such conditions is khalwa (seclusion of spouses). Thus, Islamic
law considers such a child to be the legitimate offspring of a person in every case when there is
an existing valid marriage between the father and the mother of a child. Thus, under Islamic law,
there are conditions that makes a marriage to be valid which include: Sigha (offer and
acceptance), Sadaq (dower), Wali (marriage guardian), and Shuhud (witnesses). However, the
parties to the marriage should not be suffering with unsoundness of mind, mental disorder or
insanity.
One important thing to be considered in determining the legitimacy/paternity of a child
is to see if it was at all possible that it could have been conceived during the subsistence of a
valid marriage of the child’s mother with the person alleged to be his father. It is an essential
condition of legitimacy under Islamic law that the child must have been conceived in a valid
wedlock. In other words, the person who is responsible for its conception should be the lawful
husband of the child’s mother at the time of its conception.
Moreover, when the parties are married, and the marriage is a matter of notoriety and
capable of distinct proof, any dispute as to the status of the children resolves itself into a mere
question whether the children were conceived and born in lawful wedlock. Under Islamic law, a
legal or valid marriage is presumed from continued cohabitation and the acknowledged position
of the parties as husband and wife, provided there is no insurmountable obstacle to such a
presumption and provided the relationship existing between the parties was not a mere casual
concubinage, but was permanent in its character, justifying the inference that they were lawfully
married.
The Islamic law has provided the following rules on legitimacy of a child:
1. A child born within six months of the marriage is legitimate, unless the father denies by
way of Li’an (mutual imprecation).
2. A child born after six months of the marriage is legitimate, unless the putative father
disclaims the paternity by the process of Li’an or Oath challenging that, the child is not
his child.
However, any child born after termination of a marriage is regarded as legitimate if born:
i. Within two lunar years according to Hanafi school
ii. Within four lunar years according to Shafi’i school
iii. Within five lunar years of its conception according to Maliki school.
 ESTABLISHMENT OF PATERNITY
Paternity of a child under Islamic law is quite essential; a child without traceable father
does not command respect and honor from eyes of public. Thus, as a result, he suffers
psychological debasement in the society and this is why paternity is viewed with all seriousness
in Sharia legal system.
Thus, paternity of a child can be established under Islamic law through evidence, marriage and
acknowledgment.

1. Establishment of Paternity Through Evidence

Under Islamic law, paternity of a child can be established through evidence, this may happen
in a situation where the husband was away and in his absence the wife gave birth to a child, he
may have cause to doubt the delivery or the child. In such situation, the wife may produce
evidence to prove her assertion and for this purpose, the evidence of two females is sufficient
according to Maliki School, one female according to Hanafi and Hanbali schools, and four
females according to Shafi’i school.

2. Establishment of Paternity Through Marriage

The most important way through which paternity of a child is to be established under
Islamic law is through a valid marriage. Thus, marriage is the right channel through which
paternity may be established. If a child is begotten outside wedlock, it is not considered
legitimate and should not be referred to that man who had conjugal relation with his/her mother,
not only that, but that man deserves punishment for illicit relations which may be punishable
with 100 lashes or stoning to death if the culprit is married. But if it is begotten through valid
wedlock, then it will be attributed to that man responsible for all rights and liabilities of that
child.
The general principles of legitimate paternity dictates that a child is for the bed ( al-walad lil
firash), In other words, any child born in a valid wedlock is presumed to be legitimate until the
contrary is proved. Therefore, the paternity of a child is legally established when the child is
legitimate.
Therefore, the existence or subsistence of a valid marriage of the spouses is one of the ways
through which paternity of a child will be established. However, mere continued cohabitation of
the couples for a long period in the absence of proof of marriage is not sufficient to prove the
validity of the marriage, particularly when the woman’s character is questionable before the
alleged marriage.

3. Establishment of Paternity Through Acknowledgment

Another means of establishing paternity of a child besides marriage and evidence is by way
of acknowledgment. Acknowledgment is a confirmation given by a person as to recognize the
child in question as his legitimate child for the purpose of inheritance, maintenance,
guardianship etc. Sometimes, it happens that a marriage takes place secretly or a man can travel
to a far place and get married with another woman, and after some years rumor spreads that he
has a child somewhere. In such a case, where there is element of doubt as regards the paternity
of such child, if the father acknowledges the paternity of that child in order to clear any shadow
of doubt and declares that, the child is his legitimate child, such acknowledgement is one of the
strongest proofs of establishing paternity and the child becomes his.
Under Islamic law, the father alone is authorized to establish the paternity of a child to the
exclusion of the mother or any other relative and this may be presumed from the fact that the
person was habitually and openly treating another as his legitimate child. Acknowledgment of
paternity of a child could only be established in situations where the paternity of an alleged child
is uncertain, but cannot be used as a mechanism to legitimize a child that is known to be
illegitimate.
Thus, the cardinal principle of acknowledgment under Islamic law is that, the
acknowledgment must be made in such a way that the acknowledger meant to accept the child
not only as his child but as his legitimate child. An acknowledgment can be made expressly or
impliedly. Express acknowledgment is when a man for instance says: “I am the father of this
child”. Whilst an implied acknowledgment is when a man remains silent when he is being
congratulated upon the birth of a child.

GESTATION OF A CHILD
Minimum Period of Gestation of a Child
According to all schools of Muslim jurists, the minimum or shortest period of gestation is six
months. They based this rule upon an inference drawn from two different Qur’anic verses. In
one verse, the Glorious Qur’an provides: “The carrying of the child to his weaning is a period of
thirty months” Thus, in another verse the Glorious Qur’an also states: “The mothers should
suckle their children for two full years, for him who desires to make complete the time of
suckling”. In the former verse, the both period of gestation and weaning is stated at two and a
half years, while in the later verse, the period of suckling is mentioned at two years. Therefore,
by subtracting two years, that is twenty-four months from thirty months, it leaves six months as
the minimum period of gestation which is regarded as the shortest period for a fetus to be
capable of surviving outside the mother’s womb. All Muslim jurists make a condition that the
husband should be adult and capable of sexual intercourse. Thus, if a man married a woman and
she gave birth less than six months from the day of consummation or marriage, its paternity shall
not be referred to the father. However, Maliki School tolerates five days less than six months.
Despite the fact that, all Muslim jurists agreed six months as to the minimum period of gestation,
they have different opinions from what time the count of the period will begin. Imam Malik,
Shafi’i and Hanbali hold the view that, the period counts from the day of consummation. But
according to Hanafi School, the period counts from the date of the contract of marriage.

Maximum Period of Gestation of a Child

There is much disagreement among Muslim Jurists as to the maximum period of gestation
due to the absence of any textual proof specifying same.
 According to Hanafis and Sufyan Ath-Thauri, the maximum period of gestation is two
years. The Shafi’i and the Hanbali schools argued that, the fetus may remain in its mother’s
womb for four years. Another opinion is the view of Imam Malik, he contended that, the
maximum period of gestation is five years. While Muhammad Ibn Al-hakim, a great Maliki
jurist is of the opinion that a fetus does not remain in his mother’s womb for more than one year.
However, the Zahiri School contended that a fetus remains in its mother’s womb for nine months
only.
On the other hand, from the medical point of view, specialists in the field of obstetrics
and gynecology indicate that it is impossible for the fetus to continue growing inside the womb
for several years. Thus, obstetricians and gynecologists in the present time have reported
millions of such cases, but none was extended to one year.
For this reason, according to medical experts, the maximum period of gestation is ten
months or perhaps eleven months which is equivalent to 330 days in rare and exceptional cases.
They further said, any extra period is usually resulting from miscalculation. They also contend
that; it is not known that the placenta can provide the fetus with ingredients of life for the period
over 330 days.

POSITION OF EXPERT OPINION ON PATERNITY

Historically, even before the advent of Islam, ancient Arabs have their own ways of
identifying the paternity of a child whenever there is conflict as to the father of a child. During
those days, the means of identifying the child’s paternity is by Qiyafa. Qiyafa literally means
ability to capture, supported by imaginative power, care and intelligence.
Technically Qiyafa is about relying on the footsteps of a person, or looking at his physical feature
or any part of it in order to ascertain his paternity. Qiyafa also means looking at the physical
features of a human being, his complexion in order to determine his character and class of person
he belongs to.
Islamic law as the most ideal and civilized legal system ever existing had over years
recognized the admissibility of expert medical evidence in establishment of paternity. This type of
evidence is significant especially where there is a doubt over the paternity of a child, or where
many people claim the paternity of a child. The expert medical evidence is relevant particularly in
cases where there is dispute over the paternity.
The relevance of expert medical evidence has been upheld by the provisions of Glorious
Qur’an and Sunnah of Holy Prophet. Therefore, a closer look at the text of the Qur’an will reveal
that a great consideration has been given to genes which pass from parents to offspring as a result
of sexual relationship between a man and a woman. Allah the Almighty says: “It is He who
created from water a human being and made him (a relative by lineage and marriage; for your
Lord is the Most Capable”.
This means that Allah made it clear for His creatures that He has created them from a kind of
water which passes through parentage from one generation to another, namely by the passage of
genes from father and mother to offspring. Allah (S.W.T.) also said: “He who perfected
everything that He created and He started the creation of man from clay, then He inculcated in
him the potential to reproduce through a drop of despised fluid”.
In the same vein, the sunnah of the Prophet (SAW) has upheld the validity of expert
medical opinion in ascertaining the story of Hilal bin Umayya who accused his wife of
committing adultery with Shariq Ibn Salma who was the maternal brother of Al-bara’ Ibn Malik.
In fact, he was the first man to conduct Li’an in Islam. The Prophet (SAW) said: “Watch her, if
she delivers a white-complexioned child with dark hair and bright eyes, he must be the son of
Hilal Ibn Umayyah; and if she delivers a black-eyed child with big hips and fat shins, then it is
Shariq ibn Salma’s child.
The above traditions give consideration to the genes that are passed from parents to offspring.
The Prophet (SAW) rule that the newborn is the product of the man to whom he bears
resemblance in complexion and other characteristics. However, Imam Malik in his book
Muwatta Malik had cited a decision of Caliph Umar to signify the relevance of expert medical
evidence. The decision is usually cited in Maliki School as a clear authority for the relevance of
expert medical evidence in establishment of paternity.
Hanafi School on the other hand, disagreed with the view of the majority over the
admissibility of expert medical evidence in establishment of paternity. The jurists of the school
have equated al-qiyafah with magic in prohibition. And it cannot be used to establish blood
relationship. According to the school, resemblance between two or more is not enough to be a
yard stick of existence of paternity between the persons. They further argued that, Shari’ah has
provided a way of establishing paternity through the Prophetic tradition where the Prophet
(SAW) said: “The child belongs to matrimonial bed”.

ADMISSIBILITY OF DNA TO ESTABLISH PATERNITY UNDER ISLAMIC LAW

Islam is a religion that recognizes advancement and encourages the search for knowledge. It
acknowledges new innovations in as much as such innovations will not go contrary to the
teachings of the religion of Islam. In these contemporary days, one of the pieces of evidence that
can be in proving paternity is DNA (Deoxyribo Nuclear Acid), it is a genetic material found in
all living things, it controls how human bodies function and what characteristics they inherit
from their biological parents.
However, DNA is expert medical evidence for establishing paternity through knowledge and
can be used in identifying a child from his parent through certain features and genetic material.
Therefore, DNA test is of immence benefit to be regarded as a means of resolving disputes
concerning question of paternity of a child. Nevertheless, DNA test may not be used as a single
means for establishing paternity of a child but rather corroborative evidence to establish
paternity of a child.
LEGITIMACY OF CHILD DELIVERED AFTER DIVORCE
Where a divorcee after concluding her Iddah (waiting period) happened to contract and
consummate a new marriage, and then gives birth to a child before the lapse of six months, that
child will be attributed to the former husband and her fresh marriage contract would be regarded
as invalid and should be dissolved. But if the divorced woman delivered after six months, then
the child should be attributed to the new husband, this is the opinion of Imam Malik.
However, if the divorced woman or the widow remains without contracting a new marriage and
she gave birth to a child, that child will be attributed to the former husband or the deceased if
that happened within five years according to Maliki School, four years according to Shafi’I and
Hanbali schools, and two years according to Hanafi School. Unless the former husband
disclaims the child by way of Li’an, this is the general principal of the four aforementioned
school of Muslim jurists.

CONCLUSION
From the foregoing discussion, the study has shown that paternity is an inalienable right
of a child and every child must have a single father not more. Paternity is presumed under
Islamic law, where there is a valid marriage that exists between the spouses, this is based on the
Prophetic tradition: “The child belongs to matrimonial bed”. It is however pertinent to point out
that it is strictly prohibited for a father to deny the paternity of his child, except where he has
cogent and justifiable reasons to believe that his wife had extra marital relationship with
someone. In this case, the law prescribed a way out for him, and that would mean taking the
matter to court and conducting the procedure of Li’an as prescribed in the Glorious Qur’an.
Paternity is equally presumed where the child is delivered within the minimum period of
gestation. Likewise, a husband can deny the paternity of a child in a situation where his divorced
wife delivers a child after the maximum period of gestation.

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