Question:
Assalamualaikum w.b.t. I would like to ask for an illegitimate child, who is obligated to provide for his sustenance?
Answer:
Waalaikumussalam w.b.t.
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.
الْوَلَدُ لِلْفِرَاشِ وَلِلْعَاهِرِ الْحَجَرُ
The child is the bed's and for the fornicator is the stone.
Sahih Muslim (3598)
THE DEFINITION OF ILLEGITIMATE CHILD
According to the Mufti of Federal Territories, an illegitimate child is: “Child born more than 6 qamariyyah months from the date a married couple is solemnised is an illegitimate child”. (Refer Buku Fatwa-Fatwa Mufti Wilayah Persekutuan 1987-2010, pg. 8, 37 & 38).
Hence, according to the above hadith, an illegitimate child is linked to his mother and is not be linked to his biological father according to the opinion of the majority of scholars from the four madhhabs. This matter is also clearly stated by the Muazakarah of National Fatwa: “Illegitimate child is impermissible to be linked to the man which caused his birth or anyone who claims to be the father of the child. Hence, he may not inherit from one another, will not be a mahram and may not be the wali”. (Refer Kompilasi Pandangan Hukum Muzakarah Jawatan Kuasa Fatwa Majlis Kebangsaan Bagi Hal Ehwal Ugama Islam Malaysia, pg. 206-207). The rulings related to an illegitimate child can be referred to our past articles:
Bayan Linnas Siri Ke-106: Isu Penamaan “Bin/Binti Abdullah” Kepada Anak Tidak Sah Taraf Oleh Mahkamah Rayuan (Bayan Linnas Series 106: The Issue of Using ‘bin/binti Abdullah’ Towards Illegitimate Child by the Court of Appeal) https://muftiwp.gov.my/artikel/bayan-linnas/736-bayan-linnas-siri-ke-106-isu-penamaan-bin-binti-abdullah-kepada-anak-tidak-sah-taraf-oleh-mahkamah-rayuan
Hence, based on the above explanation, a question arises, who is responsible to provide the sustenance for this illegitimate child?
THE OBLIGATION OF PROVIDING THE SUSTENANCE
Originally, the obligation of providing the sustenance for the children and wife is under the responsibility of a father. This is as stated in the Quran:
وَعَلَى الْمَوْلُودِ لَهُ رِزْقُهُنَّ وَكِسْوَتُهُنَّ بِالْمَعْرُوفِ
Upon the father is the mothers' provision and their clothing according to what is acceptable.
Surah al-Baqarah (233)
The Prophet PBUH said:
عَنْ أَبِي هُرَيْرَةَ أَنَّ رَجُلًا آتِي رَسُولَ اللَّهِ - صَلَّى اللَّهُ عَلَيْهِ وَسَلَّم َ -: فَقَالَ: إِنَّ مَعِي دِينَارًا قَالَ: أَنْفِقْهُ عَلَى نَفْسِكَ قال: إن معي آخر قال: أنفقه عَلَى وَلَدِكَ
A man came to the Prophet (ﷺ) and said, "I have a Dinar." He said, "Spend it on yourself." He said, "I have another." He replied, "Spend it on your children."
Sunan Abu Daud (1691), Sunan Al-Nasaie (5/62), Al-Hakim (1/415)
Based on both of above-mentioned evidences, it is clear that a father is obligated to provide for sustenance to his children. The obligation is due to three factors which are marriage, lineage and ownership. However, in the context of an illegitimate child, providing sustenance is under the obligation of the mother because his relationship with his (biological) father is broken. The obligation upon the mother to provide for the sustenance for the child with no father is in accordance with the verse:
لَا تُضَارَّ وَالِدَةٌ بِوَلَدِهَا
No mother should be harmed through her child
Surah al-Baqarah (233)
Based on this verse, the scholars state: “When nafaqah (sustenance) is obligated upon the father to provide for originally, then it is wajib (the nafaqah) upon the mother when there is a breakage (in nasab), and this is prioritized”. (Refer: Al-Tahzib fi Fiqh al-Imam al-Syafie, 3/156).
Imam al-Mawardi states: “The nafaqah is transferred from fathers to mothers, and if the father is absent, then the nafaqah is transferred to the mother”. (Refer: Al-Hawi al-Kabir, 11/479).
Imam Khatib al-Bujairimi said: “And zakat fitrah of the illegitimate child is upon his mother because he has no father as nafaqah (of a child) is obligated upon a father”. (Refer: Hasyiyah al-Bujairimi, 4/437).
Imam Sayyid al-Bakri said: “And zakat fitrah for an illegitimate child is upon his mother because nafaqah (of the child) is wajib upon the mother, and this is the same for child of li’an”. (Refer: I’anah al-Tolibin, 2/169). It is stated in another place: “And it is wajib upon her the nafaqah of her child in which it is wajib for the mother of the illegitimate child” (Refer: I’anah al-Tolibin, 2/335).
The obligation of providing sustenance for the illegitimate child is mentioned in the Islamic Family Law (Federal Territory) Act 1984, Section 80 (Duty to maintain illegitimate children) states:
(1) If a woman neglects or refuses to maintain her illegitimate child who is unable to maintain himself or herself, other than a child born as a result of rape, the Court, upon due proof thereof, may order the woman to make such monthly allowance as the Court thinks reasonable.
However, the scholars put specific conditions in providing the sustenance for the illegitimate child in which a mother is obligated to provide for sustenance to her child in the following situations:
The child is unable to be independent. For a daughter is until she gets married or until she has her own career.
The child is poor, does not have his own property to support herself.
The child is handicapped. If the child is has grown to a mature age or reaches puberty and is able to live in his or her own, it is not wajib anymore to provide for his or her sustenance.
The child is still studying.
The mother is able to provide for her sustenance. If the mother is unable to do so, then the obligation moves to the warith (of the mother). (Refer: Al-Fiqh al-Islami wa Adillatuhu, 10/7413-7415).
However, if a mother is unable to provide for the sustenance, the obligation is upon the warith of the mother. This is as mentioned in the Quran:
وَعَلَى الْوَارِثِ مِثْلُ ذَٰلِكَ
And upon the [father's] heir is [a duty] like that [of the father]
Surah al-Baqarah (233)
Conclusion
After analyzing the above discussion, it is clear that the obligation of providing for sustenance and nafaqah for an illegitimate child is upon the mother according to syarak rulings. This is because the child is only linked to his or her mother and not to the man who had intercourse with the mother, except for children born due to rape. Wallahua’lam.