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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 8 · Page 374

Translation · EN

regarding the establishing of lineage. For the hadd (legal punishment) for zina does not get established except through the strongest of evidence and the greatest in number, as well as the strongest form of confession, to the extent that repeating it four times is a prerequisite, and it is warded off by doubts. Lineage, however, is established by the testimony of one woman regarding the birth, and it is established by mere claim, and it is established even with the appearance of its negation, such that if a woman were to bring forth a child while her husband had been away from her for twenty years, the child would be attributed to him. How, then, can one argue against its negation based on the lack of establishing the hadd? Furthermore, because he [the Prophet] judged based on a strong probability (zann ghalib) and a preponderant opinion (ra'y rajih) from one who was of those possessing expertise, it is therefore permissible, like the statement of professional appraisers. As for their argument that resemblance might or might not exist, we say: The apparent state is its existence, and this is why the Prophet - peace and blessings of Allah be upon him - said when Umm Salamah asked: "Do you see that, O woman?" He replied: "Where then would the resemblance come from?" The hadith which they used as evidence is actually evidence against them; because the man's denial of his child due to its difference in color, and his intention to negate him because of that, indicates that the custom is otherwise, that it is within human nature to deny it, and that such occurrences are rare. The Prophet - peace and blessings of Allah be upon him - only attributed the child to him because of the existence of the bed (firash). It is permissible to contradict the apparent state for an evidence, but it is not permissible to abandon it without evidence. Furthermore, the weakness of resemblance regarding the negation of lineage does not necessitate its weakness regarding its establishment; for lineage is a matter where caution is exercised for its establishment, and it is established with the slightest evidence. This entails, by necessity, stringency in its negation, meaning it is not negated except by the strongest of evidences, just as when the hadd is warded off by doubt, it is not established except by the strongest evidence. Therefore, it does not follow from the prohibition of negating it through resemblance in the mentioned report that lineage cannot be established by it in our current issue. If it is said: Then in this case, if you act upon the qafah (lineage experts), you have negated the lineage of one whom the qafah did not attach to him. We say: The lineage was negated here only due to the lack of evidence for it, because there was nothing present except a mere claim, and a similar one countered it, so its ruling fell. Resemblance was a factor for preferring one of them, so the other indication was negated, and consequently, the negation of the lineage became necessary due to the absence of its evidence. Giving precedence to li'an (imprecation) over it does not prevent acting upon it in the absence of [li'an], just as physical possession is preceded by evidence, but [physical possession itself] is still acted upon.

Notes

(35) Omitted from [The Original]. (36) Its takhrij (citation) has preceded in: 1/265. Added to it: It was reported by al-Bukhari, in: The Chapter: Modesty in Knowledge, from the Book of Knowledge; and in: The Chapter: The saying of Allah the Exalted: "And when your Lord said to the angels, 'Indeed, I will make upon the earth a successive authority'", from the Book of the Prophets. Sahih al-Bukhari 1/44, 4/160. And Imam Ahmad, in: al-Musnad 6/292, 306, 377.

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