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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 8 · Page 457

Translation · EN

due to the possibility that it came into being after the bequest. If she were separated [by divorce or annulment] and gave birth to it more than four years after the separation and more than six months after the time of the bequest, the bequest to it is not valid. If she gave birth to it in less than that, the bequest to it is valid; because the existence of the child is known if it is within six months, and its existence is judged if she gives birth to it in less than four years from the time of separation. This is the school of thought of Al-Shafi'i. If he bequeaths to the fetus of a woman from her husband or master, the bequest to it is valid, provided the condition of its affiliation to him is met. If it is disavowed (4) via li'an (imprecation) or a claim of istibra' (establishing the purity of the womb), the bequest to it is not valid, due to the lack of the lineage required (5) for the bequest. As for if the woman is a marital bed (firaash) for a husband or master, but he does not have intercourse with her—due to him being absent in a distant land, or ill with an illness that prevents intercourse, or he was a captive, or imprisoned, or the heirs knew he did not have intercourse with her and acknowledged (6) that—our companions did not differentiate between these scenarios and the case where he does have intercourse with her, because they are not differentiated in the attachment of lineage to the husband or master, so she is considered under the ruling of one with whom he has intercourse. It is possible that whenever she gives birth to it in this state, at a time when it is overwhelmingly likely that it was present at the time of the bequest—such as if she delivers it in less than the customary duration of pregnancy, or if the signs of pregnancy are apparent, or she delivers it in a manner that makes it overwhelmingly likely that it was present due to the signs of pregnancy, such that it is ruled that she is pregnant—the bequest to it is valid. This is because it is established for it the rulings of a fetus in (7) other than this ruling, and the causes of it coming into being have been outwardly negated, so it is appropriate that we establish the bequest for it. The ruling to attach it to the husband or master in these scenarios was only out of precaution for lineage, for it is attached based on mere possibility even if it is remote. It does not follow from establishing lineage (8) based on absolute possibility that the entitlement to the bequest is negated, for one does not exercise caution to void a bequest as one exercises caution to establish lineage (8). Therefore, it does not follow to attach that which one does not exercise caution for, to that which one does exercise caution for (9), while there is evidence that establishes and validates it.

Notes

(4) In M: "muntafiyan" (disavowed). (5) In M: "al-mashrut" (the required). (6) In the original: "aw aqarru" (or they acknowledged). (7) In M: "min" (from). (8) In M: "al-sabab" (the cause). (9) Omitted from M.

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