Fatwa's Insights - Kinship

THE 54TH MEETING OF THE PERLIS STATE FATWA COMMITTEE / 2021

8 - 9 SEPTEMBER 2021 / 1 - 2 SAFAR 1443H

FATWA ON A WIFE WHO HAS COMMITTED ADULTERY AND THE LINEAGE OF THE CHILD SHE CARRIES

1. Adultery (zina) or extramarital sexual intercourse is a major sin, especially when it is committed by a married woman. When a married woman has committed adultery, she is obligated to repent immediately.

After repentance, she is not obligated to disclose the matter to her husband. This is as stated in the hadith narrated from Abu Hurairah RA, the Prophet SAW said:

كُلُّ أُمَّتي مُعافًى إلَّا المُجاهِرِينَ، وإنَّ مِنَ المُجاهَرَةِ أنْ يَعْمَلَ الرَّجُلُ باللَّيْلِ عَمَلًا، ثُمَّ يُصْبِحَ وقدْ سَتَرَهُ اللَّهُ عليه، فَيَقُولَ: يا فُلانُ، عَمِلْتُ البارِحَةَ كَذا وكَذا،

Meaning: "Every one of my followers will be forgiven except those who expose (their sins). Indeed, among the acts of exposing sins is when a man commits a sinful act during the night. Then he wakes up in the morning whilst Allah has concealed his disgrace. Then he says to others: 'O so-and-so, last night I did such and such.' Whilst he had slept with his Lord concealing his disgrace, then he wakes up and exposes what Allah had concealed from him." (Narrated by al-Bukhari)

3. The wife may resume sexual intercourse with her husband as usual. She is not required to undergo pregnancy tests or DNA tests to ascertain pregnancy and the status of the child.

4. If the husband knows that his wife has committed adultery and has repented, he may still engage in sexual intercourse with his wife without needing to wait for the cleansing of the womb. There is nothing wrong with a husband retaining a wife who has committed adultery but has repented.

5. If pregnancy occurs thereafter, the child is attributed to the husband based on the hadith: الولد للفراش which means: "The child belongs to the husband (lit. the bed)." It also accords with the jurisprudential maxim (qa'idah fiqhiyyah): اليقين لا يزول بالشك which means: "Certainty is not removed by doubt." Furthermore, the wife may also undertake measures that can prevent pregnancy by seeking medical advice.

6. However, if the wife is certain that her pregnancy is the result of adultery, then concealing the status of the child is sinful based on the hadith from Wathilah bin al-Asqa' r.a., the Prophet SAW said:

‎‎ إنَّ مِن أعْظَمِ الفِرَى أنْ يَدَّعِيَ الرَّجُلُ إلى غيرِ أبِيهِ

Meaning: "Indeed, among the greatest lies is for a person to claim lineage to other than his true father." (Narrated by al-Bukhari)

7. If a husband knows that the wife's act of adultery was committed without repentance, then the husband must divorce the wife. A husband who allows his wife to continue committing adultery is a dayus (cuckold). From Ammar bin Yasar r.a., the Prophet SAW said:

( ثَلَاثَةٌ لَا يَدْخُلُونَ الْجَنَّةَ أَبَدًا : الدَّيُّوثُ وَالرَّجُلَةُ مِنَ النِّسَاءِ ، وَمُدْمِنُ الْخَمْرِ ) ، قَالُوا : يَا رَسُولَ اللَّهِ أَمَّا مُدْمِنُ الْخَمْرِ فَقَدْ عَرَفْنَاهُ ، فَمَا الدَّيُّوثُ ؟ ، قَالَ : ( الَّذِي لَا يُبَالِي مَنْ دَخُلُ عَلَى أَهْلِهِ )

Meaning: "Three groups will never enter Paradise: the dayus (cuckold), the masculinized woman, and the chronic alcoholic." Then the companions said: "O Messenger of Allah! We understand the meaning of the chronic drunkard, but what is a cuckold?" The Prophet SAW said: "That is one who does not care who enters upon his family (his wife and children)." (Narrated by al-Tabarani, sahih)

8. A husband is forbidden and commits a major sin to accuse his wife of adultery without evidence or based upon mere suspicion or based upon someone's account. Similarly, a husband may not deny the lineage of a child carried by his wife based upon the above matters.

9. A husband may only accuse his wife of adultery or deny the lineage of a child through the process of the oath of li'an or proof of a marriage duration of less than six months in court.

Approval of Members of the Perlis State Fatwa Committee:

1. YBhg. S.S Associate Professor Dato' Arif Perkasa Dr Mohd Asri Bin Zainul Abidin – Mufti of Perlis;

2. Sahibul Fadhilah Prof Dato' Kaya Bakti Dr. Mohd. Radzi bin Haji Othman;

3. Sahibul Fadhilah Dato' Dr. Johari Bin Mat;

4. Sahibul Fadhilah Professor Dr. Basri bin Ibrahim;

5. Sahibul Fadhilah Associate Professor Dr. Muhamad Rozaimi bin Ramle;

6. Sahibul Fadhilah Dr. Hj Zaharuddin Bin Hj Abdul Rahman;

7. Sahibul Fadhilah Associate Professor Dr. Mohd Akram Bin Dato' Dahaman @ Dahlan;

8.Sahibul Fadhilah Dr. Kamilin Jamilin @ Ahmad Kamil Jamilin;

9. Sahibul Fadhilah Dr Ahmad Sufian Bin Che Abdullah;

10. Sahibul Fadhilah Associate Professor Dr Ahmad Wifaq Bin Mokhtar;

11. Sahibul Fadhilah Ustaz Syed Abu Bakar Bin Syed Kamal Bharin;

12. Ustaz Muhammad Khidhir Bin Abdul Ghani – Secretary.

Resolved/Approved at the Meeting of the Majlis Agama Islam dan Adat Istiadat Melayu Perlis Bil. 4/2021 on 14 September 2021.