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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 14 · Page 499

Translation · EN

According to our position, she is entitled to the dowry from each of them, and each of them acknowledges for his partner half of the value of the slave woman; because he says: "She became an umm walad to me by my having made her pregnant, and it became obligatory upon me for my partner to pay half of her value, and I have against him the value of his child; because he says: "You made her pregnant after she had already become an umm walad to me." Does he acknowledge for him half of the value of the child? There are two views, which have already been mentioned. According to this, if what he claims and what he acknowledges are equal, they offset each other, they cancel each other out, and there is no oath [for either one of them] against the other; because he says: "I have against you the same as what you have against me." The category is the same, so they cancel each other out. If what he acknowledges exceeds [what he claims], then there is nothing against him; because his opponent denies his acknowledgment. If what he claims exceeds [what he acknowledges], then he has the right to an oath against his opponent regarding the surplus, and [the slave woman's status of] emancipation is established for the share of each one of them upon his death due to his acknowledgment of that, and his statement against his partner regarding the emancipation of his share is not accepted. Abu Bakr said: There are two opinions regarding the slave woman; one is that lots are drawn between them, so she becomes the umm walad for whomever the lot falls. The second is that she becomes an umm walad to both of them, and neither of them shall have intercourse with her. He said: "I hold the first opinion." As for al-Qadi, he chose that if they are both wealthy, each of them claims the dowry from the other and acknowledges to him half of it. This is the school of al-Shafi'i; because the dowry according to them is for her master, not for her, and no part of her is emancipated upon the death of the first; due to the possibility that she is the umm walad of the other. When the other dies, she is emancipated; because her master has died with certainty. If they are both indigent, each of them acknowledges that half of her is his umm walad, and the other confirms this for him; because the establishment of umm walad status does not spread with indigence, and each of them acknowledges for his partner half of the dowry, and the other confirms this for him, so they offset each other if they are equal. If one of them exceeds the other, you must look: if each of them claims the surplus, they take oaths against one another and it is dropped, and if each of them acknowledges the surplus for the other,

Notes

(50) In B: "that". (51) Omitted from the Original. A matter for consideration. (52) Omitted from B. (53) Omitted from the Original, A, and B. (54) In the Original: "for the mother". (55) Omitted from M. (56) In M: "and as for if". (57) In M: "acknowledging".

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