Dr. Muhammad Benaish
Professor of Thought and Civilization
First: Ruling on existence and the woman’s right to protect and prove lineage
Lineage in Islam was established on constant controls in the cosmic reality. It revolves around it in an orbit that cannot escape or be disturbed as soon as there are passing clouds in its path or storms blowing beside it. The Sunnah of God is in His creation. “You will not find any change in the Sunnah of God, and you will not find any change in the Sunnah of God.” “It is not necessary for the sun to overtake the moon, nor for the night to precede the day, and everyone swims in an orbit.”
Among the evidence of this cosmic connection to human relative existence, we found the Qur’an referring to this meaning in Surah Yusuf when it expressed its vision to his father Jacob, peace be upon them both: “O my father, I saw eleven stars and the sun and the moon. I saw them prostrating to me” the verse.
He expressed the father and mother with the sun and the moon, and the brothers with the planets, and that this solar system must be of a single origin, interconnected with each other and revolving in its spheres with the necessary commitment and communication established by lineage and ratio, despite what sometimes appears to be formal fluctuations in the face of the harmony that occurs between the ends of the tree. However, the main common trunk remains the decisive and stable one, with which the branch cannot deny or denounce its attribution to it. God Almighty says: “Have you not seen that God causes the night to enter into the day and causes the day to enter into the night, and He has subjected the sun and the moon, each running for an appointed time, and that God causes What you do is an expert.
Hence, Islamic jurisprudence considers the rule of existence as the most important scientific rule in formulating rulings, deducing them, and controlling them until the phenomenon of wisdom becomes reasonable in meaning. This was the statement of the jurists in issuing their fatwas, and it is based on a sure and fixed rule, which is “ruling for existence,” that is, ruling for reality that falls within the framework of meaning. Necessary, not in the purely natural sense, but in the sense of repetition and the stability of the rule of conclusion. The first criterion for legal filiation and the achievement of lineage, whether for the father or the mother, was the element of time determined by the cycles of the spheres, especially the sun and the moon, as we have previously linked to the topic.
The right of lineage is a common issue between the father and the mother alike, even though the origin of it is the father, so the mother still has the right to accept or reject this child attributed to her if there is no evidence and testimony of this lineage or the birth of another.
Therefore, the mother in Islam remains the one who determines the lineage, its honor, and its connection, and thus she is safe from her honor and the honor of her husband and children, since her righteousness is the basis of the righteousness of society and the righteousness of the branch in its connection to the origin.
Given the importance of women and their main role in protecting the lineage and preserving the child from destruction, loss, or abandonment that leads to it, the first test and indication of the sincerity of her faith and her loyalty to the pledge of allegiance that places her on an equal footing with men to achieve family stability and the social, psychological, and doctrinal interest was the commitment to preserving the integrity of the child’s lineage and protecting his right to Existence, upbringing, and upbringing that is righteous and stable. God Almighty says: “O Prophet, when believing women come to you pledging their pledge of allegiance to you that they will not associate anything with God, nor will they steal, nor commit adultery, nor kill their children, nor bring slander that they invent between their hands and feet, nor disobey you in what is right, then pledge allegiance to them and ask forgiveness for them. Indeed, God is Forgiving, Merciful.” “.
It is the same pledge of allegiance on which the Ansar from Aws and Khazraj pledged allegiance to the Prophet, may God bless him and grant him peace, for the first time at the first Aqaba, which is also called the women’s pledge of allegiance even though there were no women, so it was named after them to give priority to their privacy in this area and because the definitive Qur’anic text focused primarily on them in this test. Thus, she was the most important person in charge of the child’s lineage and fate, and this is what Abdullah bin Salam, may God be pleased with him, expressed when God Almighty said: “Those to whom We have given the Book know it as they know their children, and indeed a group of them conceal the truth while they know it,” when Omar bin Al-Khattab, may God be pleased with him, said to him. God said on his authority: “Do you know Muhammad as you know your son? He said: Yes and more. Al-Amin descended from heaven upon Al-Amin on earth with his name, so I recognized him, and my son, I do not know what he was from his mother.”
Therefore, the mother always remains the holder of the right to lineage when she demands it or obliges her to do so, and she is the main mediator in attaching a child to his son according to the legal rule represented primarily by valid marriage and its temporal and spatial controls, since, as Badran Abu Al-Enein says: “As for lineage being a right for the mother, it appears that She has the right to protect the child from loss and ward off the accusation of adultery on her own behalf. For this reason, the mother has the right to be an adversary in the claim of her son’s lineage from his father as long as it is in her hands. There is no difference between the claim being pure and pure and being part of another claim such as alimony or custody on his behalf.
She is not suitable as an adversary in a claim for the son’s maintenance on his father due to her lack of capacity due to the disappearance of her hand, but she is suitable as an adversary in the claim of the child’s abstract lineage because she has a real interest in proving her son’s lineage from his father in order to defend herself from the charge of adultery. Her being a mother to the child is sufficient for her to be considered as having the capacity in the lineage claim that “It has a close connection with motherhood.”
Also, proving motherhood and the attribution of the child to her may be based on purely psychological and emotional foundations when there is no other evidence in the event of conflict and disagreement, and this is what we find in the chapter “If a woman claims a son” in Sahih al-Bukhari on the authority of Abu Hurairah, may God be pleased with him, that the Messenger of God, may God bless him and grant him peace, said: There were two women with their sons. The wolf came and took the son of one of them. She said to her friend, “He took your son.” The other said, “He took your son.” So they brought you to the court of David, peace be upon him, and he ruled for the eldest. So they went out to Suleiman bin David and informed him. He said, “Bring me a knife and I will cut it between you.” The younger said, “Do not do so, may God have mercy on you. He is her son.” So he decided. “It is for the minor.”
This approach was very advanced in issuing rulings in the event of a dispute, and it is the approach of the prophets and messengers and those who follow them, by focusing on the inner truth of the person in the event of a dispute and the absence of apparent evidence and its details. Hence, it was necessary to take the psychological issue into consideration when issuing rulings for judges so that their rulings do not become… They are purely arbitrary material projections or physical and cellular medical possibilities that are similar, overlapping, or confusing. Hence, Sufi culture can be included as a necessity in the formation of a judge so that he is aware of the reality of his own condition and the state of the soul of others.
The child remains close to his mother, whether before or after his birth was distinguished, and therefore she is the ruler over him according to the rule of existence, whether in proving the beginning of her menstruation or menstruation, or in proving the end of her waiting period and her expiration, with the same existential contingency that concerns her body and its functions. However, she remains subject to the rule of time. A place determined by the marriage contract and the reality inherent in it, according to the established functions of pregnancy and childbirth, and according to the achieved or assumed communication between husband and wife, which is based on rules binding on both parties to the contract.
Second: Ruling on the presence while controlling the duration of normal and exceptional pregnancy
The principle of ruling on existence is considered stable by jurists, and they build it on realistic data and mathematical calculations that leave no room for doubt in the issue. Hence, existence according to them includes the ordinary and the exceptional, and the latter is the one upon which rulings are based when litigation because it is an infrequent occurrence and repeated at the same time, and hence it cannot be Prohibiting the ruling and limiting it to what is apparent and known to the public and the private, otherwise the rights and duties of the individual will be lost because of it at the expense of the group, and ready-made and unjust rulings will be dropped on innocent people who have established rights; they have no fault except that they were destined for this exception, which is neither inconsistent with the realistic possibility nor the mental possibility in the case of Meditation and contemplation.
Among the initial examples and exceptional and rare issues in the field of protecting lineage that have the rule of existence, we may find the issue of the age of menstruation, for example, as in Al-Mughni by Ibn Qudamah, who says about it: “The minimum age at which a woman menstruates is nine years, because the reference to it is to existence, and there have been those who menstruate for nine, and it has been It was narrated on the authority of Al-Shafi’i that he said: I saw a grandmother who was twenty-one years old. If she miscarried, the period of her two pregnancies would usually be a year and a half, and the remainder would be divided between her and her daughter. Each of them would have been pregnant for less than ten years. If she saw blood before that, it is not menstruation, because there was no one like her. Repeatedly, and what is considered from this is what is repeated three times in a state of health and this is not the case, it does not count. If she reaches an age at which women menstruate in the majority and she does not menstruate, such as fifteen years, then her waiting period is three months according to the apparent meaning of Al-Kharqi’s saying, which is the saying of Abu Bakr, and it is the doctrine of Abu Hanifa, Malik and Al-Shafi’i. Abu Bakr weakened the narration that contradicts this and said: Abu Talib narrated it, but his companions disagreed with it. That is what Abu Talib narrated on the authority of Ahmad, that she should observe the waiting period for a year. Al-Qadi said: This narration is more correct because when the time for menstruation came upon her and she did not menstruate, she became suspicious, and it is possible that she had a pregnancy that prevented her menstruation. So she must observe the waiting period for a year, like the one whose menstruation stopped after its existence, and we have the words of God Almighty: “And those of your women who have despaired of menstruating, then their waiting period is three months, and those who have not menstruated”….
This deduction may be related to a realistic practical procedure for the Prophet, may God bless him and grant him peace, in terms of determining the age of menstruation in his marriage to Mrs. Aisha, may God be pleased with her, as Al-Bukhari narrates about her in his Sahih: “The Prophet, may God bless him and grant him peace, married her when she was six years old, and he consummated marriage with her when she was nine years old.” Years. Hisham bin Urwa said: I was informed that she had been with him for nine years.
The text in Al-Mughni includes the main jurisprudential rules for deriving the ruling, which are: existence, repetition, and number.
Existence is considered by repetition. Repetition is considered in number, and the number is limited to three repetitions, and all of this is derived from the Book of God Almighty and the Sunnah of His Messenger, may God bless him and grant him peace, and several rulings are based on it, especially those related to issues of marriage, divorce, waiting period, oaths, and expiations…
In summary, everything that is included in the rule of verifying existence and repeating it applies this triple number so that it becomes a source of judgment in jurisprudential and judicial issues in the event of a dispute… and all or most of these rules are devoted to determining the temporal and spatial constants of pregnancy.
In terms of temporal constants at the beginning of marriage, we find the minimum duration of pregnancy as a definitive determinant of the validity of the lineage and the conditions establishing it.