Marrying a man who denies his paternity of his son from his ex-wife
Fatwa No: 150845

  • Fatwa Date:9-3-2011 - Rabee' Al-Aakhir 4, 1432
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Question

Asalaamalaykum. I want to marry an arab man who is separated from his wife. He has been separated from her and living apart for several months. He is still sorting out the divorce via the courts as it is a long proceedure due to him having a child. This makes everything very difficult. He was married to a non practising Christian woman. I have my doubts as to whether that child is his because the child does not look at all mixed race (half arab half white) and nothing like his father. He looks like a white child. He has also questioned it many times and even said he would get a DNA test which makes me suspicious as he doubts it too. I am so confused as I do not know what to do. Is it wise to go ahead with this knowing all these problems? Also what is the ruling on seeing his ex wife for the sake of the child? I hope you can guide me. Jazakallahkhair

Answer

All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

If this man is religious and has a good moral conduct and you both want to marry each other, then you should accept to marry him. What you mentioned about him doubting his son not to be from him should not be a hindrance for you to complete this marriage. However, we advise you to perform Istikhaarah prayer about him so that Allaah would choose for you what is best. For more benefit on how to perform the Istikhaarah prayer, please refer to Fatwa 81434.

As regards this child, if that woman gave birth to him while she is the wife of that man during a period in which this child could be from him, which is the minimum period of pregnancy (i.e. 6 months), then the child is Islamically traced back to him. The only way for this child not to be traced back to him is if he [the husband] denies him [the child] by invoking Li’aan (i.e. he and his wife invoke the curse of Allaah on the liar among them when he accuses her of having committed adultery]); for more benefit, please refer to Fatwa 84301.

If it is confirmed that the child is his son as he is the owner of the bed (i.e. the legitimate husband of this woman), then no consideration should be given to the DNA test because the Sharee’ah takes utmost precautions to trace back the child to his father; so it traces back the child to his father for the least possibility. For more details, refer to Fatwa 122944.

Besides, it is not permissible for a person to deny his paternity of his son just because he does not resemble him; who knows, it might be that he resembles his grandfathers. The evidence for this is that Abu Hurayrah  may  Allaah  be  pleased  with  him narrated that a man came to the Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) and said: “O Prophet of Allaah! A black child has been born for me.” The Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) asked him, “Have you got camels?” The man said, “Yes.” The Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) asked him, “What color are they?” The man replied, “Red.” The Prophet said, “Is there a grey one amongst them?” The man replied, “Yes.” The Prophet said, “Whence comes that?” He said, “May be it is because of heredity.” The Prophet said, “May be your latest son has this color because of heredity.” [Al-Bukhari]

An-Nawawi  may  Allaah  have  mercy  upon  him said: “The son is traced back to the father even if his color is different from that of his father.

On the other hand, if divorce takes place, it is permissible for that man to discuss with that woman (his ex-wife) the affairs of their son, because it is permissible for a man to speak to a non-Mahram woman for a need if the religious conditions are met, like not being in seclusion with her and the like. For more benefit, please refer to Fatwa 128779.

Finally, it should be noted that separation between the husband and his wife in itself does not lead to divorce; rather, the bond of marriage still exists even if the period of separation is long unless the husband divorces her or that an Islamic judge divorces her from him. Similarly, if a husband initiates divorce, then divorces takes place and the wife observes a waiting period and this has nothing to do with authenticating the divorce in the court. In addition to this, it is not permissible to resort to non-Islamic courts except in case of necessity. Moreover, the divorce that is issued by such courts is not valid unless the husband initiated divorce as per the Fatwa of the Assembly of Muslim Jurists in America. In this case, the husband should be careful about any legal accountability regarding this.

Allaah Knows best.

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