Challenges of a Child Born Out of Wedlock

Provided that the infant or child is a Singapore citizen and is enrolled in a child care centre licensed by the Early Childhood Development Agency (ECDA), infant care and childcare subsidies are available according to a tiered-scheme. The child may be eligible for financial assistance for education, provided he/she is from a lower income background or has development or special needs. If you are a working mother, you will be eligible for childcare leave before your child turns 7 years of age. Extended childcare leave is also available when your child is 7 to 12 years of age.

ISLAM AND THE ILLEGITIMATE CHILD

In Islamic law, an “illegitimate” child refers to a child born out of an invalid marriage or without a marriage contract. Their lineage towards their biological mother is valid and is not debatable, but their lineage towards their biological father has triggered some debate among Muslim jurists.

The orthodox Muslim jurists unanimously opined that the illegitimate child only have lineage towards their mothers. The traditional Muslim jurists from Hanafite, Malikite, Shafi‘ite to Hanbalite schools of Islamic law opined that they have no lineage towards their fathers. However, there were dissenting opinions proposed by al-Hasan and Ibn Sirin that the illegitimate child had lineage towards their biological fathers who have already been punished under the law.

The unanimous opinion of the majority of Muslim jurists concerning the maternity of the child is based on the clear-cut evidence from pregnancy, birthing to breastfeeding. On the other hand, the child‘s paternity to his/her biological father is hard to establish especially if his/her mother is polygamous. Therefore, the main problem of the lineage of a child born out of wedlock to his/her parents in classical Islamic law was a matter of evidence.

Issues that hamper the rights of an illegitimate child include the right of inheritance, the right of having the ‘father’ as a wali during nikah and the corollary issues that follow: including the rights of maintenance and education.

In other jurisdictions, for example in Malaysia, the problem is compounded by the fact that the illegitimate child is forbidden to take the name of his/her father. A fatwa issued by the National Fatwa Council forbids Muslim children conceived out of wedlock from carrying their father’s name. The fatwa, which applies to both infants born out of wedlock and those born within the first six months of their parents’ marriage, means such children tend to go by the name of “bin Abdullah” or “binti Abdullah” – a generic name that is often also pushed onto reverts of Islam. To add salt to the wound, just as recently as November 2019² Malaysia’s top court granted the National Registration Department (NRD) a stay on an earlier Court of Appeal ruling that allowed Muslim children conceived out of wedlock to take their father’s name.

SYARIAH LAW: A REVISIT

It is useful to return to the basics of Islam when trying to unpack basic human issues. For Muslims, our main point of reference as to our faith is the Quran.

It represents God’s Words revealed to Prophet Muhammad that was later compiled as the Quran. The Quranic text is, thus, not only the basic scriptural basis for the Syariah but indeed its most important source. As such, it is necessary to understand that the Syariah is fundamentally grounded in a narrative of faith. This narrative anchors the Syariah in what one scholar has called a “moral hermeneutic”³. Over the centuries, as part of unpacking this moral hermeneutic, considerable efforts were made to reflect on the meaning of the Message. Various interpretations of the Quran (tafsir) in many languages were made available.

Other sources of Islamic law became methodically developed: primary among these were the sunnah (the Prophet’s words, deeds and affirmations), the qiyas (reasoning by analogy), the istihsan (jurist’s preference in matters of interpretation), the darura (doctrines of necessity), the maslaha (matters of public interest) – all deemed under Syariah as legal tools to specifically address a very broad range of issues facing the community at any given point in time.

Underlying this centuries of rich legal tradition is the aim to discover and reflect on God’s penultimate message. Khaled Abou El Fadl succinctly said: “I suggest that the shari’a ought to stand in an Islamic polity as a symbolic construct for the divine perfection that is unreachable by human effort – a concept summed up in the Islamic tradition by the word husn, or beauty. It is the epitome of justice, goodness and beauty as conceived and retained by God.”⁴

It is important to note therefore that Syariah is not a closed set of fixed rules but instead a continuous process of discourse that Muslims must engage in in order to understand the Message aimed at facilitating human lives as God intended.

THE MAQASID OF SYARIAH

The maqasid, or objectives, of Syariah assumes that Islamic law is a holistic system consisting of various principle considerations in understanding any legal injunction or adherence. Therefore, in considering the issues and challenges faced by illegitimate children born out of wedlock, Islamic law must regard all opinions of Islamic schools and examine them based on legal sources, linguistic analysis, a method of reasoning, culture and history, location and time. In addition, the jurists should consider rules concerning illegitimate children as well as other factors pertaining to the children born out of wedlock from rights of the child, psychology, sociology to economy.

The general maqasid is understood to consist of necessities and needs, as well as justice and facilitation. Ibn Qayyim al-Jawziyah states: “The foundation and basis of Syariah are based on wisdom and welfare of people in this world and hereafter. The Syariah is all about justice and people's welfare. Every rule that deviates from justice to injustice, from mercy to its opposite, from welfare to evil, and from soundness to uselessness are not Syariah.”⁵

Hence, Allah states in the Quran: “Call them by [the names of] their fathers; it is more just in the sight of Allah”⁶. Furthermore, the Quran is explicit in various verses⁷ of the concept that no person shall bear the burdens/sins of another. It is unjust for innocent children to be attached with the negative label of being illegitimate as a result of their parents’ wrongdoings.

SIGH OF RELIEF

Over the years, Islamic jurists and the Muslim community have moved forward in some aspects. The treatment for children born out of wedlock varies among Muslim countries. Jordan, for instance, obliges their relatives to support maintenance for the children. In Egypt, the government assumes the support of maintenance of the children. In Tunisia, in addition to receiving maintenance from their relatives, the government also instructs their biological fathers to provide maintenance⁸.

On matters of maintenance in Singapore, applications are made in the civil courts (Family Justice Courts) and not the Syariah Court. Fathers of illegitimate children are obliged by law to maintain their children in the civil courts⁹. The United Nations Convention on the Rights of the Child (UNCRC) dictates that there should not be any difference to the rights of children born in and out of wedlock. The children also have the right to the identity of their families as stipulated in the UNCRC Article 8¹⁰ as follows:

I. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

II. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

Muslims in Singapore are allowed to adopt a child. Though there are disagreements between Muslim jurists and the law of the land with regard to adoption, it provides a stronger safeguard to the interests of the child on issues such as custody, inheritance, maintenance of parents and tax relief. This is because adoption creates a parent-child relationship such that the child is a legitimate child of his or her adoptive parent(s). The birth certificate of the adopted child can be changed to reflect the name of the adopted father¹¹.

MOVING FORWARD

The issue of inheritance is a sticky point. Illegitimate children lose priority of inheritance as it goes first to the surviving legitimate children. The Intestate Succession Act¹² defines “child” as a legitimate child and includes any child who is legally adopted. This is likely to mean that illegitimate children are not entitled to receive a share of his or her biological parent’s inheritance unless there is a will. Similarly, a Muslim’s adopted or illegitimate child will not inherit under the faraid system, unless a will is specifically made in his or her name. This becomes the most contentious issue for an illegitimate or adopted child upon his or her parents’ death.

There is still a long way in resolving the issue of inheritance to arrive at a level in which a legitimate and an illegitimate child are viewed as equally deserving of inheritance, even if the apportionment may vary in degree. Bearing in mind that the paramount purpose of Syariah is about justice and welfare, an illegitimate child, through no fault or sin of his or her own doing, will be left with nothing if no will was made specifically in his or her name.

Perhaps it is time again for Muslim jurists to come together and explore the various gamut of legal tools available and consider the plight of these children in light of the prevailing Islamic jurisprudence, the maqasid of Syariah including practical considerations of the rights of the child, psychology, sociology and economy.