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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 8 · Page 369

Translation · EN

David judged for the older one, and Solomon judged for the other based on the mere claim of both of them. This is the opinion of some of the companions of Al-Shafi'i. According to this narration, he is attributed to her, but not to her husband; because it is not permissible for the lineage of a child to be attributed to one who has not acknowledged him. Likewise, if a man claims his lineage, he is not attributed to his wife. If it is said: A man may have a child from another woman or from his slave-woman, whereas it is not permissible for a woman to be married to someone other than her husband, nor is it permissible for her to be subjected to intercourse by anyone else. We say: It is possible for her to give birth from intercourse by doubt or otherwise. If the child could potentially have existed before this husband married her, it is possible that he is from another husband. If it is said: The acknowledgment of lineage by the husband is only accepted due to the benefit it provides in removing the stigma from the boy and protecting him from being attributed as a child of adultery, and this is not achieved by attaching his lineage to the woman; rather, attaching him to her without her husband introduces stigma upon him and her. We say: On the contrary, we accepted her claim because she is claiming a right in which she has no contender, and which causes no harm to anyone, so her statement regarding it is accepted, just as in the claim of property, and this is realized in the woman's claim. The second narration is that if she has a husband, the lineage is not established by her claim, because it leads to attributing the lineage to her husband without his acknowledgment or consent, or to the fact that his wife was subjected to intercourse by adultery or by doubt, and there is harm to him in that, so her statement is not accepted in matters that cause him harm. If she does not have a husband, her claim is accepted due to the absence of this harm. This is also a position held by the companions of Al-Shafi'i. The third narration,

Notes

(9) Extracted by Al-Bukhari, in: Chapter on the Saying of Allah the Exalted: {And We gave to David, Solomon. Excellent is the servant...}, from the Book of Prophets, and in: Chapter on if a woman claims a son, from the Book of Inheritance. Sahih Al-Bukhari 4/198, 8/194, 195. And Al-Nasa'i, in: Chapter on the Judge's Ruling Based on His Knowledge, from the Book of Judiciary. Al-Mujtaba 8/206, 207, and 'Abd al-Razzaq, in: Chapter on the Two Women Claiming, from the Book of Divorce. Al-Musannaf 7/362. (10) In the original: "she married him to this". (11) Omitted from: M. (12) In M: "attributing her". (13) In M: "to the stigma". (14) In M: "or". (15) In M: "doubt".

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