By Amira Sonbol
Source: Egyptian Family Law Cases Since 2000
In a recent Egyptian court case, a girl alleged that she had been married ‘urfi (common-law) but had no marriage certificate to present because the marriage had taken place in an oral form. The debate about the validity of oral marriage was a fierce one and still continues, but the previous Mufti of Egypt, Sheikh Ali Gomaa gave an opinion that the marriage contract was by its nature an oral contract which is then textualized. That assisted in getting the child of the marriage recognized by the court based on evidence to the existence of such a relationship between the two.
A mother’s paternity?
An Egyptian MP is working on a law that would allow mothers to register a newborn child without the presence of the father. Egyptian law forbids the registration of children without the consent of the father, this consent must be given in person at the time of registration or by official proxy of a family member authorized to undertake the registration by the father. The news of what the MP is trying to do brought about an outcry of anger by those who fear that this would be a way by which women would foist children on unsuspecting men by presenting false marriage contracts and other means. The necessity of this law comes about because of the lack of willingness of a significant number of fathers to register their children and thereby become financially and legally responsible for these children. That this is one important reason for the growing menace of street children, gives this law a chance of success in being passed by the Representative Assembly.
Last year, a somewhat related issue raised its head. In this case a young woman asked the court to recognize her child even though the father refuses to recognize him. She asked that the boy be named after her if it will not name him after the father. A child without registration in a country like Egypt means that he would not have a citizenship nor any rights to education, jobs, social services, state-protection and all that goes with being a resident of the state. Nameless and stateless would be the fate of the child. Yet many fathers simply walk away and refused to own up and give the child the chance at a normal life, mostly so as not to be socially or financially responsible. In this particular case, the girl alleged that she had been married ‘urfi (common-law) but had no marriage certificate to present because the marriage had taken place in an oral form. The debate about the validity of oral marriage was a fierce one and still continues, but the previous Mufti of Egypt, Sheikh Ali Gom`a gave an opinion that the marriage contract was by its nature an oral contract which is then textualized. That assisted in getting the child recognized by the court based on evidence to the existence of such a relationship between the two.
The debates about these various paternity issues is laced with religious laws and theological opinions, with the idea that a father is required for the registration of a child and that the child must be attributed to a father as being the basic approach not to be questioned. Yet, Islam has precedence where a mother’s paternity is an accepted principle and this evidence, unlike the modern paternity law requiring presence of the father to register the child, is actually Qur’anic corroborated by Sunnah. This is the required basis set by usul al-fiqh to legitimate an Islamic law. The following are the particular lines from the Holy Qur’an and the Hadith showing the Sunnah precedent of the prophet.
Qur’an on Paternity
Mother established by birth
“In pain did his mother carry him, and in pain did she give birth to him.”
Father established by genetics
“Prohibited to you for marriage are … those who have been wives of your sons proceeding from your loins …. ”
Father established by genetics
“… nor has he made your adopted sons your sons. This is but what you say with your mouths … And God says the truth and He guides to the right path. Attribute them to their fathers and call them by their father’s name, that is more just in the sight of God. If you do not know their father’s names call them your brothers in faith.”
Hadith on Claims of Paternity
Source: Sunan Abu Dawud, book 12, Number 2247, narrated by Ibn Abbas
Hilal ibn Umayyah … returned from his land and found a man with his wife. He witnessed with his eyes and heard with his ears. … he went to the Apostle of Allah … and said … I came to my wife at night and found a man with her. I saw with my own eyes and heard with my own ears … Thereupon the following Qur’anic verse came down: “And those who make charges against their spouses but have no witnesses except themselves, let the testimony of one of them….” When the Apostle of Allah (peace_be_upon_him) came to himself (after the revelation ended), he said: Glad tidings for you, Hilal. Allah, the Exalted, has made it easy and, a way out for you… [he then sent for her] and recited (the verses) to them that the punishment in the next world was more severe than that in this world.
Hilal said: I swear by Allah, I spoke the truth against her.
She said: He told a lie.
The Apostle of Allah (peace_be_upon_him) said: Apply the method of invoking curses on each other.
Hilal was told: Bear witness. So he bore witness before Allah four times that he spoke the truth.
When he was about to utter a fifth time, he was told: Hilal, fear Allah, for the punishment in this world is easier than that in the next world; and this is the deciding one that will surely cause punishment to you.
He said: I swear by Allah. Allah will not punish me for this (act), as He did not cause me to be flogged for this (act). So he bore witness a fifth time invoking the curse of Allah on him if he was one of those who told lies.
Then the people said to her: Testify. So she gave testimony before Allah that he was a liar.
When she was going to testify a fifth time, she was told: Fear Allah, for the punishment in this world is easier than that in the next world. This is the deciding one that will surely cause punishment to you.
She hesitated for a moment, and then said: By Allah, I shall not disgrace my people.
So she testified a fifth time invoking the curse of Allah on her if he spoke the truth.
The Apostle of Allah (PBUH) separated them from each other, and decided that the child would not be attributed to its father. Neither she nor her child would be accused of adultery. He who accused her or her child would be liable to punishment. He also decided that there would be no dwelling and maintenance for her (from the husband), as they were separated without divorce.
He then said: If she gives birth to a child with reddish hair, light buttocks, wide belly and light shins, he will be the child of Hilal. If she bears a dusky child with curly hair, fat limbs, fat shins and fat buttock he will be the child of the one who was accused of adultery. She gave birth to a dusky child with curly hair, fat limbs, fat shins and fat buttocks.
The Apostle of Allah (PBUH) said: Had there been no oaths I should have dealt with her severely.
Ikrimah said: Later on he became the chief of the tribe of Mudar. He was not attributed to his father.