Study on the legitimacy of children in Islamic law and its application in Nigeria

Abstract

Legitimation of children born out of wedlock has long been a conundrum among Muslim legal experts. The genesis of their controversy is traced to the diverse interpretations given to the commonly cited dictum; ‘alwalad lil fir?sh’ (The child belongs to the one on whose bed it is born). The strong inclination of the majority of early Muslim jurists to the view that a child born out of wedlock is not allowed to be attributed to his putative father has become predominant. Many countries with legal pluralism, like Nigeria, where Islamic law is an integral part of their legal system have always been faced with legal challenges over the legitimation of illegitimate children. Islamic law has been fiercely criticized for preventing putative fathers to acknowledging their biological children. Besides, the position of Islamic law on the legitimation of children born out of wedlock has been perceived as antithetical to Section 42(2) of the 1999 Constitution of the Federal Republic of Nigeria, popularly known as non-discrimination clause. Therefore, the primary objective of this research is to explore polemical discourse on the legitimation of children born out of wedlock under Islamic law. The research also examines the process of legitimating children born out of wedlock under the existing laws in Nigeria. Additionally, some selected Muslim countries have been included to find out the status of those children. The research has been achieved through the adoption of the qualitative approach, which includes doctrinal and non-doctrinal legal research methodology. Semi-structured interviews were conducted with Law Lecturers, Islamic Studies lecturers, Presiding Justice of the Court of Appeal, Judges/Q?dis, children born out of wedlock, Muslim scholars, medical experts and Community Leaders. Based on the findings of the research, bizarre conditions of children born out of wedlock have been traced to the one-sided interpretation of legal texts. This research has also found that the consensus reported by some jurists that any child born illegitimate cannot be legitimated is completely unfounded. Ultimately, the study has found that there is a possibility of harmonization of Islamic and Civil laws in this regard without trampling on the fundamental principles of Shar?’ah.