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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 11 · Page 235Section

Translation · EN

Section: If a woman acknowledges the expiration of her waiting period (iddah) by menstrual cycles, then gives birth to a child six months or more after its expiration, the child's lineage shall not be affiliated with the husband. This is the view of Abu Hanifah and Ibn Surayj. Malik and al-Shafi'i said: It is affiliated with him, provided she has not remarried or four years have not passed. The statement of al-Khiraqi allows for this interpretation, for he stated generally: "If she gives birth to a child after his divorce or death within four years, the child is affiliated with him." This is because it is a child that could possibly be his, and there is no one else with a better claim to it, nor anyone equal to him, so it must be affiliated with him, just as if she had given birth after the marriage contract. Our argument is that she delivered the child after the legal ruling of the expiration of her waiting period and the permissibility of marriage for her by the duration (21) of pregnancy, so it is not affiliated with him, just as if she had delivered it after the expiration of her waiting period by the delivery of her fetus for the duration of pregnancy. Possibility is only considered while the marriage or its effects remain, and that has ceased. If her waiting period (22) expires by months, and she then gives birth to a child in less than four years, its lineage is affiliated with him; because if (23) she was claiming menopause, we have demonstrated her falsehood, for one who is pregnant is not in menopause. If she is among those who do not menstruate, or if he died leaving her, her child is affiliated with him, because in her case, nothing exists that contradicts her being pregnant.

Section: If a minor who is not of the age to father children dies leaving his wife, and she gives birth to a child, his lineage is not affiliated with him, and the waiting period does not expire by its delivery; she must observe the waiting period (24) by months (25). This is the view of Malik and al-Shafi'i. Abu Hanifah said: If he dies while she is visibly pregnant, she observes the waiting period by delivery, but if the pregnancy only becomes apparent after his death, she does not observe the waiting period by it. It has been narrated from Ahmad, regarding a minor, a view similar to that of Abu Hanifah. Ibn Abi Musa mentioned it, and Abu al-Khattab said: It is far-fetched. The disagreement is similar in the case where he marries a woman, consummates the marriage, and she gives birth to a child in less than (26) six months from the time of the marriage contract, for she does not observe the waiting period by its delivery.

Notes

(21) In the original and A: "al-mudda" (the duration). (22) Omitted from B and M. (23) Omitted from the original. (24) Omitted from A and M. (25) Omitted from M. (26) In B: "duna" (less than).

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