The problem of the ancestry of the child of adultery: a comparative study between Islamic law and the Iraqi personal status law

Volume 12 , Issue 1 , June 2024 , Pages 110-140

Authors

Khalid Mohammed Salih 1 ; Bilal Mahmud Muhammed 2

1 Department of Law, College of Law, University of Sulaimani - Kurdistan Region of Iraq. // Master in Prıvate Law.

2 PhD student at the College of Law, University of Sulaimani - Kurdistan Region of Iraq.

DOI logo 10.17656/jlps.10253

Keywords

Abstract

Lineage is considered one of the most important rights that are established for the child after his birth, because its confirmation entails other rights for him that have been established for him by Islamic law and man-made laws. It is the strongest pillar on which the family is based, and its members are linked to it by a permanent bond of connection, kinship, affection, and mercy. Therefore, Islamic law was keen to Preserving lineages, and expanding the scope within which the child's lineage is proven so that the child is not considered the child of adultery if it is the result of an existing legal relationship between a man and a woman within its legal framework (valid or invalid marriage or suspected intercourse). If the child is the result of an illegitimate relationship, there is no disagreement among the jurists of Islamic law that every child born in the bed of a man is attached to him and not to anyone else. However, if the adulterous woman was not the husband's bed, then the jurists differed in establishing the lineage of the child of adultery. The majority of jurists went to Paternity is not proven by adultery, while the Hanifa and another group of jurists held that the son of adultery is attributed to the adulterer under certain conditions. As for the Personal Status Law, it does not explicitly stipulate the lineage of the child of adultery. However, it is clear from the content of the text of Article (51) of the law that the legislator touched upon Implicitly to the lineage of the child of adultery, by specifying the ways and means through which lineage can be proven, the judiciary, the Kurdistan Region Court of Cassation adopted the consensus of jurists in not attributing the child of adultery to the adulterer if the adulterous woman was the bed of a husband. However, if the adulterous woman was not the bed of anyone, then the Kurdistan Region Court of Cassation initially held that the child of adultery does not legally trace his lineage to his father, but after that, the Court of Cassation changed the previous opinion and took the opinion of the jurists who said that the lineage of an adulterous child from his adulterous father was proven.

Statistics
  • Article view916
  • Downloads0
  • Published at15 June 2024

  • RIS
  • BibTeX
  • EndNote
  • Mendeley
  • APA (7th edition)
  • MLA (9th edition)
  • Chicago
  • Harvard
  • IEEE
  • Vancouver