the irrevocably divorced woman. The second [narration] is that he is joined to him, because she is in the ruling of wives regarding residence, maintenance, divorce, dhihar, ila', and permissibility, in one narration, so he resembles what was before the divorce.

Section: If a man is absent from his wife for years, then news of his death reaches her, she observes her waiting period, enters into a valid marriage in appearance, the second husband consummates with her and she bears him children, then the first returns, the marriage of the second is annulled, she is returned to the first, she observes a waiting period from the second, she is entitled to a dowry equivalent to that of her peers from him, and the children are his; because they were born on his marriage bed. This is narrated from Ali, may Allah be pleased with him. It is the opinion of al-Thawri, the people of Iraq, Ibn Abi Layla, Malik, the people of the Hijaz, al-Shafi'i, Ishaq, Abu Yusuf, and others among the scholars, except for Abu Hanifa, who said: The child belongs to the first; because he is the owner of the marriage bed, and because his marriage is valid and established, while the marriage of the second is not established, so he resembles a stranger. Our argument is that the second was exclusively the one who had intercourse with her in a marriage in which lineage is joined in such a case, so the child is his, not anyone else's, like the child of a slave woman from her husband who is joined to him, not to her master, and he differs from a stranger, as the latter has no marriage.

Section: If a man has intercourse with a woman who has no husband by mistake (shubha), and she produces a child, his lineage is joined to him. This is the opinion of al-Shafi'i and Abu Hanifa. The Qadi said: I found in the handwriting of Abu Bakr that he is not joined to him, because lineage is not joined except in a valid marriage, or a corrupt one, or right of possession, or a suspicion of ownership, and none of that was found; and because it is intercourse that does not rely on a contract, so the child is not joined to him by the intercourse, like adultery. The correct view in the madhhab is the first. Ahmad said: Everyone from whom you ward off the hadd punishment, you join the child to him. And because it is intercourse where the one having intercourse believed in its lawfulness, so the lineage is joined to him, like intercourse in a corrupt marriage. It differs from the intercourse of adultery, for he does not believe in its lawfulness there. If two men married two sisters, and were mistaken about them at the time of consummation, so each of them was taken to the husband of the other, he had intercourse with her, and she became pregnant by him, the child is joined to the one who had the intercourse; because it is intercourse he believed to be lawful, so the lineage is joined to him, like intercourse in a corrupt marriage.