English
Sammak narrated from a freed slave of Banu Makhzumah: Two men had intercourse with a slave girl in one period of purity, and she became pregnant. It was not known from which of them the child was. They came to Umar, disputing over the child. Umar said: “I do not know how to judge this.” They went to Ali, who said: “He is shared between you; he inherits from both of you, and you both inherit from him, and he belongs to the one who remains of you.” [Narrated by al-Tahawi]
In a narration by al-Bayhaqi: Two men had intercourse with a slave girl in one month, and she gave birth to a child. They went to Umar, who attributed him to both, so he inherits from them, and they inherit from him. Al-Shawkani said: It is narrated from Imam Yahya that the hadith of physiognomy is abrogated. Al-Tahawi narrated from Urwah ibn al-Zubair that Aishah informed him that marriage in the pre-Islamic era was of four types. One was that men would gather around a woman, and she would not refuse anyone who came to her. These were prostitutes who would place flags at their doors, and anyone who entered would have intercourse with her. If she became pregnant and gave birth, they would gather physiognomists, who would attribute the child to one of them, and he would be called his son, unable to refuse. When Allah sent Muhammad (ﷺ) with the truth, he abolished that form of marriage and its ruling, affirming people in the marriage that does not require physiognomists’ opinions. He made the child belong to the one who claims him, establishing his lineage by that, and abrogated the prior ruling based on physiognomists’ opinions.
Commentary and footnotes (3)
Note 1
(1) His statement: “He is shared between you; he inherits from both of you, and you both inherit from him,” etc. This indicates that the opinion of physiognomists is not used for lineage or otherwise, as held by the Kufans, al-Thawri, Abu Hanifah, and his companions. Al-Shafi‘i and others cited the hadith of al-Mudliji to establish the validity of physiognomy and ruling by their opinions in attributing a child. If it were not so, the Prophet (ﷺ) would have objected to Mujazziz, saying: “How do you know?” His silence and lack of objection indicate that their opinion leads to a truth that warrants ruling. The Hanafis’ evidence against them is that the Prophet’s (ﷺ) pleasure with Mujazziz’s statement in Aishah’s hadith does not indicate what they assumed about the obligation to rule by physiognomists’ opinions. Usamah’s lineage from Zayd (may Allah be pleased with them) was established before that, and the Prophet (ﷺ) did not need anyone’s opinion. Otherwise, Usamah would not have been attributed to Zayd earlier. The Prophet’s (ﷺ) amazement was at Mujazziz’s accuracy, as one is amazed at someone whose assumption correctly identifies the reality, but it does not necessitate ruling by it. The Prophet (ﷺ) did not object because Mujazziz’s statement did not attempt to establish what was not already established. Allah says: “And do not pursue that of which you have no knowledge” [Qur’an 17:36]. This is summarized in Sharh Ma‘ani al-Athar. Al-Qari said: The hadith of al-Mudliji does not establish lineage by physiognomy; it is only for reinforcement and dispelling suspicion, like when a just witness testifies to seeing the crescent moon, and an astrologer agrees. The astrologer’s opinion is not a standalone proof for affirmation or negation but can reinforce a legal proof. Our evidence is the hadith: “The child belongs to the bed.” The inference is that the definite article and the lam of specification indicate exclusivity. Ibn al-Humam said: If a slave girl is shared between two partners and bears a child, and one claims it, his lineage is established from him, whether in sickness or health, and she becomes his umm walad by agreement, without compensating the partner’s share in solvency or insolvency. If both claim it, his lineage is established from both, and she becomes their umm walad, serving each one day. If one dies, she is freed, and the son inherits from both as a full son, and they inherit from him as one father. If one dies, the son’s entire inheritance goes to the surviving one. This is our view, as held by al-Thawri and Ishaq ibn Rahawayh. Al-Shafi‘i held this in his old opinion. Ahmad preferred the hadith of physiognomy, and it is said to be used if physiognomists are absent. Al-Shafi‘i said to refer to the physiognomist’s opinion, and if none is found, the matter is deferred until the child reaches maturity and chooses one. If he does not choose, his lineage remains deferred, not established except from his mother.
Note 2
(2) His statement: In a narration by al-Bayhaqi, etc. This is stated in al-Binayah.
Note 2
(۲) قوله: وفي رواية للبيهقي إلخ : كذا في «البناية».