“Forbidden unto you are your mothers, and your daughters, and your sisters, and your father’s sisters, and your mother’s sisters…” (Qur’an 4:23).
This article is to discuss the very controversial opinion held by Imam Al Shafi’i that says that if you had a daughter born out of wedlock (marriage) that you could marry her and have sexual relations with her!
Here is a short article that gathered quite a bit of attention of the subject.
Now the issue with this article is that neither side really furnishes evidence for the claims that are made. One side claims that Imam Shafi’i held this opinion and the other side claims that it is a blatant misrepresentation of his viewpoint.
However, we have an official Shafi’iFiqh website with a reference that shows this indeed was the opinion of Imam Shafi’i.
I’ll quote the whole of the response here:
“Wa alaykum salam wa rahmatuLlahi wa barakatuHu,
The official position of the Shafi’i Madhhab is that a girl born out of wedlock is not a daughter, marriage to her is permissible but disliked. (Minhaj al-Talibin w/ Tuhfah 2/299) To claim that Imam Shafi’i said it is permissible for one to marry his ‘daughter’ is a misrepresentation of his opinion. Other scholars who wrote on this issue treated Imam Shafi’i and his opinion with a more mature and academic approach than what circulates in some contemporary discourses on this topic. For example, in Sharh Mukhtasar al-Rawd 3/434, al-Tufi mentioned this as an example of qiyas al-shabah. He pointed out that from the biological angle, she is a daughter. But from where the Sacred Law stands, she is not: she does not inherit nor does he inherit from her, he is punished for accusing her of being unchaste, his hand is cut off if he steals from her, and he is executed if he takes her life. Tufi says that “we” i.e. the Hanabilah considered the biological factor when ruling on marriage with her, considering it unlawful. And Imam Shafi’i considered that in all other cases the Sacred Law negates paternalistic rights, and therefore she is likewise in this case not his ‘daughter’ according to the Law. In his Muhalla 8/334, Ibn Hazm mentioned that there is no difference of opinion amongst the scholars on the suspension of these rights, except for when it comes to tahrim.
With that, the As-hab al-Awjuh differed on how they understood Imam Shafi’i on this particular point. Some of them considered that a girl born out of wedlock was ruled lawful as there is no marital bed she may be ascribed to, and it is dubious as to who her father really is. This position is alluded to in the commentaries on Minhaj. In al-Hawi al-Kabir 11/393, Mawardi related from Abu Is-haq al-Marwazi that it is permissible as her being from him is only a mere possibility. However, if that would be a defiantly confirmed fact, then his marrying her would be unlawful. Marwazi gives the example of a man and woman being imprisoned together from the time of their relations until the child is born. He says if a child came from such a situation, then it would be unlawful.
After this citation, Mawardi cited another understanding from Abu Is-haq al-Marwazi’s student, Qadi Abu Hamid. According to him, Imam Shafi’i ruled it was disliked because of the differences of opinion on the matter [khurujan min al-khilaf]. But otherwise, she is not his daughter and therefore she is not unlawful for him. The reasons Mawardi cited for this ruling, those supporting Imam Shafi’s application of qiyas al-shabah, are the same as what was cited above. Tarjih in the Madhhab, at the hands of Shaykhayn and Shaykh al-Islam’s students, went with Qadi Abu Hamid on this particular issue.
And Allah knows best.
Answered by Shaykh Yaqub Abdurrahman”
The screenshot is included because as those who follow Prima-Quran know -some times these links have a habit of mysteriously disappearing.
So we all agree that marrying one’s daughter is forbidden in the Qur’an. What is actually very sad is that the Creator had to reveal this as a law, to begin with. You would think that it would be common sense for people not to want to have intimacy with their own daughter. You would think the very idea would be disgusting and reprehensible.
So let us deal with the points in the answer above.
Point 1) It is without a shadow of a doubt that Imam Shafi’i has a position that one can marry their own ‘daughter’.
Point 2) The dispute is rather or not she is a daughter in a biological sense or a legal sense. Notice the use of apostrophe when using the word daughter as ‘daughter‘.
To address point 2) here above I remember having a discussion here in Singapore with a well known Ustaz who mentioned to me a case of a young teenage boy who was notorious for sleeping with women and getting them pregnant. He is literally the father of children from a number of women. However, because of the view point in the Shafi’i school MUIS (Majlis Ugama Islam Singapura) had their hands tied.
So what about the justice due to these women? Wham, Bam Thank you, Ma’am!
What about the justice due to the children?
In Malaysia/Indonesia -where sexual promiscuity among Muslim teens is quite high I am not certain how they handle such scenarios either.
For me and our position at Prima-Qur’an, there is no such thing as illegitimate children in Islam!
There are only illegitimate MEANS to have children.
As one brother recently told me people in many parts of the world especially in the Indo-Pak region treat children out of wedlock as though they are disease, scum of the earth or filth, and either they’re thrown in rubbish bins at birth or given to orphanages and throughout their entire lives deprived of all basic human rights and dignity!
You can read the following link to get an idea of the scope of damage that such jurisprudence has done to humanity!
The following verses in the Qur’an support the idea that children should not be deprived because of the actions of their parents.
No one will bear the burden of another. Even if an overburdened soul should ask another to bear a part of his burden, no one, not even a relative, will do so. (Qur’an 35:18)
“That no bearer of burdens will bear the burden of another.” (Qur’an 53:38)
“Whoever is guided is only guided for [the benefit of] his soul. And whoever errs only errs against it. And no bearer of burdens will bear the burden of another. And never would We punish until We sent a messenger.” (Qur’an 17: 15)
The idea of making a daughter a ‘DAUGHTER‘ in the case of the so-called sacred law deprives and punishes such children because of their parent’s actions.
Point 3) As the article shows even the position of Imam Shafi’i (r) collapses under the weight of logic.
“Marwazi gives the example of a man and woman being imprisoned together from the time of their relations until the child is born. He says if a child came from such a situation, then it would be unlawful.” So remember folks the rationalist, so-called Mutazalites and logic is bad!
Point 4) Why not err on the side of caution?
The article says:
“Some of them considered that a girl born out of wedlock was ruled lawful as there is no marital bed she may be ascribed to, and it is dubious as to who her father really is.”
So the logic here is it’s dubious who her father is so you can like to marry her and have sex with her?!
Why not let the logic here be: It’s dubious who her father is so it’s like um a good idea if you don’t marry her and have sex with her?!
This is what I don’t get some times dear respected readers. We are told these Imams are unassailable in their jurisprudence. Yet here you will have the Shafi’i school which will make it forbidden to marry Jews and Christians based upon what they believe is dubious grounds for them actually being Jews and Christians; and yet, say it is permissible to marry one’s daughter if she is born out of wedlock!
We are told to approach this topic with a more ‘academic‘ and ‘mature‘ mindset. Some times these statements are made to simply table discussion of controversial matters. May Allah (swt) rectify our condition.
There are two points that turn this position of Imam Shafi’i (r) to ashes.
#1 Modern DNA testing.
#2 Those places that do not have DNA testing available the very inconsistency of the qiyas -analogy applied is enough to refute it. As mentioned before instead of the dubious nature of who her father is being a green light for permission to for the marital bed why not simply err on the side of caution and let there be a red light for this?
Some people will say, “How brazen! You really think you can do better than these imams? “ The answer to that is not only absolutely yes we (the Muslim Ummah) can do better than them (I believe they want us to do better than them) and the future of Muslims depends on us doing better than them.
With Allah (swt) is success!