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Assalamu alaikum;
fati,

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Haza wasalam,

Salamu alaikum;
 
Thanks to everyone for contributing to this topic. With the hopeful permission of Ibraheem A. Waziri and the request of Sanusi Lamido, I have posted a side dialog that took place off the Forum, between Ibraheem A. Waziri and Sanusi Lamido
regarding this topic:

Salam alaikum

Thank you very much for letting me have a copy of your brilliant comments
and I do hope you will be able to post my response to the sites on which
your original comment was posted. I regret that I am just responding I have
been away from my PC and only returned to work today.
I will be brief because of time constraint.
First there are two issues which I want to separate: The issue of law (or
fiqh) and the isue of its objectives (or maqasid). I will discuss each on
its own but I agree with you that both are essential.

I will begin with fiqh.

Indeed the question of pregnancy after iddah is one discussed by jurists. As
a matter of fact the ruling that a woman who is divorced or whose husband
dies and then she delivers a child in less than the maximum gestation of
pregnancy-that the child is to the dead husband or, in the case of the
divorcee, the one who divorced her unless he goes through the oath of Li'an
and repudiates the child- this ruling is found in the chapter on iddah in
the Mukhtasar. Khaleel there mentions that there is a disagreement over
whether this term is 4 years or 5 years in Maliki law, a position also
reported by Abu Zahra in his al-Ahwal al-shakhsiyyah.

You raise a related question: If a woman has had her iddah and seen her
period should she have any rights to be presumed innocent of zina if she  
has a child after that before or after remarrying? In the school of Abu
Hanifa if a woman acknowledges that she has completed her iddah and she then
has a child more than 6 months after the date on which she completed the
iddah before remarrying the child does not automatically revert to the
husband unless he acknowledges it and the pregnancy is by implication
circumstantial evidence of zina.If she has the child more than 6 months
after contracting the new marriage it belongs to the new husband.

In the Maliki school the ruling is different. If you read the commentary of
'Ulaysh on the Mukhtasar- the Minahul Jaleel- (this is all in the chapter on
iddah)- he says: "Her case is not adversely affected even if she had
acknowledged that her iddah is complete. This is because menstruation is a
pointer to the absence of pregnancy only in a majority of cases but some
pregnant women do menstruate." (ie menstruation is not conclusive proof of
the absence of pregnancy.)
This issue is only relevant if the child is delivered more than 6 months
after completion of iddah. If it comes in less than six months after that
even if she is married the marriage is to be annulled and the child given to
her old husband because it is concluded that she contracted a marriage while
pregnant and therefore technically in iddah.In other words if a woman says
she has completed her iddah and then gives birth less than 6 months after
the date she claims, the fact of delivery is proof that she was lying. The
minimum gestation, remember, is 6 months so she must have been pregnant on
the date she claims she completed her iddah.
If it comes more than 6 months after the date then in Hanafi law it is not
the previous husband's but in Maliki law it is, so long as she remains
unmarried or has remarried but less than 6 months to the date of delivery.
If she delivers the child more than 6 months after the new marriage it is
automatically that of the new husband in all schools of law unless he
repudiates it by Li'an.

This is the law.

A second related question is this: If she has a child more than 4 or 5 years
after her last sexual contact with her last husband should the child be
automatically considered illegitimate and should she face the hadd? Again
the point is dicussed in the Mukhtasar and its commentaries.
Khaleel reports a fatwa from Malik in the Mudawwanah cocerning if a divorcee
or widow marries after 4 years and eight months of her last contact with her
husband and then gives birth in the 5th month after marriage. Malik says
that the child is not for her last husband (because she had it 5 years and
one month after her last sexual contact with him ie beyond maximum
gestation). It also does not belong to the new one (because 5 months is less
than minimum gestation). So Malik ruled that it belongs to neither and she
should be stoned. Khaleel then adds an interesting word-wastushkilat-
meaning that maliki jurists have found this fatwa of Malik's problematic.

Commentators like Ulaysh and Dirdir( in sharhul kabir) say that scholars
like Lakhmi and Qasibi object to this ruling because the maximum term was
not fixed by Allah and His prophet and therefore its excession can not be
the basis for declaring a child illegitimate much less for stoning a Muslim
to death. Besides, according to them there is a dispute over this term even
from Malik himself and he is reported to have on occasion fixed it at 7
years.

On this point Dasuki says in his Hashiya: "Malik is reported to have said
the maximum term is 4, and 5, and 6 and 7 years at diffrent times. This
conflict is a shubha on the basis of which the hadd should be set aside."

When you read all of the points on this issue you are left with one
conclusion. Although in Maliki law pregnancy is proof of fornication it is
impossible to convict a widow or divorcee based on the fact of pregnancy.
She is presumed innocent once the child is born within maximum gestation
even if she acknowledges that she completed her iddah with periods. Where it
exceeds the term she may be convicted but the punishment is set aside based
on shubha resulting to from different fatwas on the maximum the term itself
as in the Hashiya of Dasuki. Please cross check all of these points at your
convenience.

So conviction based onpregnancy becomes theoretical and she can only be
convicted,in reality, based on 4 witnesses or voluntary confession, as in
the other schools. But her confession can be withdrawn at anytime in matters
of hadd other than slander as is well known so Amina has by the mere fact of
appeal withdrawn her confession leaving the pregnancy which is no proof
since it is within the term.


You raise a major question: Should children of doubtful legitimacy be
allowed to roam around and be subjects of gossip among the ummah? The answer
is simple:Gossip in Islam is haram and the Qur'an is explicit on this (wa la
yaghtab ba'dhukum ba'dhan). In Muslim law there is no child of doubtful
legitimacy. A child whose mother is known either has a legal father or does
not. If the father is unknown (as in a child found abandoned) he is presumed
to have a legitimate father who is unknown. A child is a bastard only where
his mother is convicted for zina resulting in the child's conception- as in
a previously unmarried girl- the so-called "single mothers" of our
generation. Once the law has attributed a child to a father he has a nasab
and any "gossip" or "allegation" is qadhf or slander on his mother. The only
reason any Muslim would engage in such gossip is ignorance of the law and we
cannot kill women as a solution to the ignorance of society. The solution is
education on the law which we are trying to achieve to the best of our
ability. The Zamfara governor recently referred to Safiya who went to Italy
as an adulteress. She has been acquitted by a court of the charge and if she
knew her rights she could sue him for slander and have him given 80 lashes
unless he has witnesses to the act.

You say Amina had legal advice but she went ahead and convicted herself. Did
she really? Did this advice include the implications of her utterance? Was
Amina aware that if she said she committed adultery before the alkali he
would have no option but sentence her to death by stoning, and that if she
held her peace her former husband had responsibility for her child unless he
took the oath of Li'an? If she knew this why is she protesting the sentence.
I put it to you she did not receive proper guidance before she made her
ignorant statements and the qadi had the duty to consider her ignorance
which made her make the staements she did. Besides the upper court rejected
her withdrawal of confession against all principles of law.

Finally, and I apologise for dragging this you raise the question of
maqasid. Unfortunately in life you sometimes have conflicting objectives.
You must remember that Malik and other jurists had wives and daughters and
neighbours and therefore were quite familiar with the normal terms of
pregnancy. Indeed most Ithna-athari jurists and the Zahiri school set a
maximum term of 9 months. Ibn al-Hakam said 12 lunar months and he was
supported in this by Ibn Rushd.A'isha, Abu Hanifa and a report from Ahmad
put it at 2 years. Why did Maliki jurists drag it to 4, 5, 6, 7 and even in
the extreme 12 years even though their contemporaries had shorter terms? To
understand this you must understand that objects(Maqasid) can be in
conflict.

It is true that the shariah protects nasab. But remember 2 things: A bastard
has no rights and claims on its father in Muslim law. No one is obliged to
feed him or clothe him or train him or get him married and he has absolutely
no agnates or other family on the father's side. And all this for an offence
committed not by him but by his mother and her consort. is it not desirable
to save this innocent child from the adverse consequences of a crime of
which he is innocent- or should he suffer for the crime of his mother? Add
to that that the mother will be stoned to death on conviction. So he has no
father and father's family, his mother is killed and he lives with the
stigma of beimng labelled a bastard.
Second, pregnancy in Maliki law is a much stronger proof of zina than in
other schools. For this reason the Maliki school has to set conditions that
are very severe to save women from being killed based on pregnancy. Again
this is to save Muslim life from being taken in vain- and as you know the
protection of life-nafs- is ranked higher in maqasid than the protection of
nasab. In the science of Usul the maqasid are ranked and where the masalih
(good things) can not be attained together a lesser good is sacrificed.
Where the mafasid (bad things) can not all be avoided simultaneously the
worst is avoided and the lesser good tolerated. We sacrifice mukammilat for
tahsiniyyat, sacrifice tahsiniyyat for hajiyyat and sacrifice hajiyyat for
dharuriyyat. Both human life (nafs) and progeny (nasab) are, as you know,
dharuriyyat (necessities). But the ranking of this class is the din
(religion) then nafs(life) then 'aql ( mind) then nasab or nasl (progeny)
then mal (property) and some add 'irdh (dignity). Where there is even a
remote possibility that life may be unjustly taken in defence of nasab the
decision has to be in favour of protecting life, even if nasab be adversely
affected. Besides a man who brings up a Muslim child like his own has many
rewards from Allah for doing this and the child may grow up to be of service
to Islam.It is better for her to escape and for the child to have a father
who is not his biological father than to risk killing her in error and the
other consequences.

This may seem strange of course but it is not. We are all married and have
children but can we swear that we are the biological fathers of our kids? We
presume the innocence of our wives and the shariah compels us to- but surely
there are many bastards born in their father's houses but the fathers are
none the wiser. It is the same principle. The child is a legal child-we are
all legal children-hopefully but not always-the biological offspring of our
fathers.

The other side of the coin of course is that a young girl who is unmarried
is more likely to pay the price of pregnancy in Maliki law- but this is only
caning and the child-stigma notwithstanding- at least has a mother.I
believe, and Allah knows best, that the Maliki school is most uncompromising
in the case of a previously unmarried pregnant girl because what is at risk
when she is flogged is not her life but her dignity and this is ranked lower
on the scale than nasab. The law that protects nasab is willing to risk
sacrificing the reputation of a girl on the altar of protecting a higher
dharura. And Allah knows best.

I hope I have responded sufficiently to your comment. If next time I do not
go into detail please do not take offence I am a bit tight for time.

Salam alaikum wa rahmatullah

Lamido


>From: "Ibraheem Waziri" <iawaziri@uaemail.com>
>To: <lamidos@hotmail.com>
>Subject: Re:Amina Lawal
>Date: Tue, 17 Sep 2002 11:10:48 -0700
>
>  Mallam,
>
>Yaya Kwana biyu, yaya iyali dafatan kowa da kowa na lafiya. Na tadda
>bayaninka game da Amina a Kano-Online forum. Wadannan sune tamnbayoyina
>game da al'amarin. Ina fatan Malam zai duba ya amsa mani.
>
>Naka, Dalibinka
>Ibraheem
>
>Assalamu Alaikum,
>
>
>One of the five major reasons of Shari'a in Islamic societies in
>entirety is to protect people's genealogy Nasab. It tries to make sure
>that a child has been proven to be legitimately sired, for if not, the
>child will continue to live a life with his personality permanently
>indicted. That is why Shari'a dwells a lot on issues regarding divorce
>and pregnancy. The waiting time, months or period, iddah within which it
>will be clearly certain if a woman is not pregnant after divorce have
>been stipulated in the Qur'an. (Surat al- Dalaq please) Shari'a has even
>gone to the extent of telling us not to send divorced women away until
>they exhausted this period iddah after which it will be absolutely
>certain(even in modern medicine and whatever) as to whether she is
>pregnant or not (Surat al Dalaq). In the case of Amina Lawal or Lawan
>she has already exhausted that period iddah after which no any story
>about pregnancy came up.  Later, after two concrete years, she came with
>a child, it is said that under Maliki law, Sharia cannot convict her
>because the child might belong to her former husband. Okay, agreed, but
>she went a head to confess to their village head and to multitude of
>people that the child is a product of an illegitimate relationship. The
>village head couldn't do anything but to report her to authorities since
>the genealogy for the child was at the risk of being maligned. Here
>these words: they did not report her accusing her of committing adultery
>but because the circumstance was a puzzle to them, and they felt only a
>court of law could solve it. There at the court, this lady confessed
>again that she has committed the abominable act. The judge tried to save
>her by creating excuses for her in a polite way(according to a friend
>whom I seconded to follow the case for me through the Hausa Magazine
>programme Jakar Mogori by FRCN Kaduna) but she iterated and reiterated
>that the child was not legitimately sired. Now Sanusi Lamido Sanusi, if
>you were the judge what would you have done?
>
>
>Remember, genealogy is one of the main things that Shari'a came to
>protect and Islam is built on the philosophy of life that demands that
>we trust people and take them by their words until they prove otherwise.
>Not cynicism of the western world, which demands that we don't trust
>them until they prove trustworthy. That was why the other man, I mean
>the accomplice in Amina's case has to be acquitted and she, be
>convicted.
>
>
>And added to this, what does Shari'a suggest in a situation where we
>have children of questionable ancestry? Does it demand that we ask the
>bearers of such children to explain or we should just leave them which
>will lead the entire community to be gossiping, denying them this and
>that, just because they have speculative ancestry?
>
>
>Finally, I think and strongly believe that our intellectual giants today
>are in the position faith-wise and intellect -wise to sit down and
>come-up with a very comprehensive Fiqh. The ability to do ijtihaad is
>not and has never been an absolute prerogative of Malik, Abu Hanifah,
>Ibn Taimiyyah or any other highly revered person. At the risk of being
>immodest I will say, I think the books read by people like Sanusi could
>be larger in volume than those read by Malik and other revered scholars
>of our much "glorified" past. And on the level of piety I believe it is
>only Allah can judge.  Sai anjimanku Kanawa kaidai kaga bayi da kokari.
>
>
>Ma'assalam
>
>
>Ibraheem A. Waziri

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