Question:
To the Mufti of Federal Territories, in today’s age of technology where all the information regarding marriages, birth, etc are registered through JPN and there is also the technology of DNA identification to determine the biological relationship of a father and child. Then, every matter related to inheritance or marriages should first refer to JPN to determine their eligibility according to syarak. In previous times, there is no database system available, thus, stringent rules or fatwa are implemented to avoid confusion of a person’s lineage in the future. Since now we have the technology to identify if a person is eligible according to syarak. In terms of IC registration, what is the problem of naming a child after the father (bin/binti to the father following certain conditions), but for matters related to syarak, such as regarding marriages or inheritance, religious authorities must first refer to JPN to form the right SOP. Hope for an opinion from Mufti regarding my statement.
Answer:
Alhamdulillah, praise and thanks to Allah for the countless blessings He has blessed us all with. Blessings and salutations to the Prophet Muhammad PBUH, his wives, his family, companions and all those that follow his teachings to the day of judgement.
According to the final opinion of madhhab al-Syafie, the semen from out of wedlock intercourse is not considered in syarak. In Mughni al-Muhtaj, Imam al-Khatib al-Syarbini states: “Makhluqah (female) that is born from fornication with a man, whether the intercourse is on purpose or not (forced), whether it is certain to have come from the man’s sperm or otherwise, then they are considered permissible (permissible to be married to/non-Mahram) for they are considered as ajnabi (strangers) for there is no honour from the sperm of fornication.” Refer Mughni al-Muhtaj (4/287).
Syeikh Muhammad al-Zuhaili Hafizhahullah said:
“Illegitimate child is considered mahram with the mother for the affirmation of his birth is through musyahadah (eyewitness) and certainty from the mother. As for a daughter, she is not mahram with the man who commits fornication. The reason is fornication is fahisyah (vile) and prohibited and she is not considered as the man’s lineage through the consensus of ahl al-hadith, “For the fornicators are only rocks (nothing but the punishment of stoning). He is denied from bequeathing his property, his words and testimony are rejected and he deserves to be sentenced with caning or stoning, denying him any rights of claiming lineage to the child.” Refer al-Mu`tamad fi al-Fiqh al-Syafie (4/29)
This matter should be thought of by the man who commits fornication before he even commits the abominable act in the first place. The same applies to the woman who gives herself away when it is prohibited. Accordingly, they should immediately repent and get married to change it into permissible intercourse covering the disgrace and avoiding the birth of illegitimate child. The people concerned should realize this and do not delay it until after the illegitimate child is born or a child born less than six months after marriage.
When the child is born, the child is still considered as a human but his/her rights as the child, inheritance and wali for marriage is denied. Alternatively, the child is named after the mother, it is permissible for the child to be left some property through will and the wali for marriage for the child is a judge (wali hakim/appointed judge as wali). If the man who commits fornication with the mother marries the mother, then the man will be considered as the child’s step father and this will make it permissible for them to be alone together, shake hands and expose the awrah of what is permissible between non-mahram muabbad (eternally).
Syarak does not disregard the general interest of family institution for the sake of the mistake committed by a number of individuals. Lineage and family institution should be protected in times when people are renting and living together without being married to each other, parents no longer restrict boyfriend and girlfriend from going out or being alone or doing things that could lead to fornication. This is why fornication is described as fahisyah or vile in the Quran, so that we would avoid it the best we can, for the detrimental effect it carries.
People who commit fornication should bear the consequences of their actions and as Muslims, all of us are obligated to know the effects and consequences that we will have to face what we should when we transgress in our actions. Thus, it is prohibited to name an illegitimate child after the man that is the cause of the child’s birth.
In this matter, National Registration Department (JPN) should be the one referring to the advice and opinion of Muslim scholars and not the other way around.
Wallahua’lam.