Supreme Court vs Sharia? Muslims split on inheritance for children born out of wedlock

Debate still rages among Islamic scholars and Muslim faithful over the recent Supreme Court ruling affirming that children born out of wedlock are entitled to inherit from their father’s estate.

Some say that the ruling guarantees equity as outlined in the five aspects of the human association in Sharia in what they refer to as Masqasid-al Shariah.

However, critics say that the June 30 ruling challenges the aspect of keeping lineages safe and pure as envisioned by the Islamic law.

“The Shariah always protected Nasab (lineage), and a ruling like this one seeks to compromise that security and opens doors for immorality,” argues Sheikh Rishad Rajab Ramadhan, a Madina University-trained scholar.

Veteran scholar Said Ahmad Badawy and Jamiah Mosque Sheikh Jamaluddin Osman want Muslims to reject the ruling, claiming it seeks to reform the Sharia.

“Inheritance must be conducted within acceptable conditions. Nasab (lineage), which emphasises the eligibility of the inheritor, among others," argues Sheikh Osman.

“Despite the Supreme Court ruling, we will abide by what Allah (God) has decreed. We do not have a choice but to obey what Allah has decreed.” 

Fatma Aboud, the respondent in the case, expressed displeasure on social media.  “I’m the wife of the deceased in this case, which has been ruled unfairly. The other lady who claimed to have three children with my former husband claimed she would not submit to the jurisdiction of the Kadhi’s Court and had a petition in court with only an affidavit and neither marriage nor birth certificates to support it,” she said.

But the debate has many wondering whether Islam, a religion built upon the pillars of equality and justice, condemns  children born out of wedlock to a second-class caste.

“No, Islam does not condemn and bears no prejudice towards children born out of wedlock. We just like to keep things clear without discriminating against the inheritor nor the inherited. A child born out of wedlock can rise to the highest positions in authority and become judges, kadhis, or even khalifa; only the Nasab should be maintained transparent, which serves many purposes,” says Sheikh Rishad, who also adds that those born out of wedlock can inherit from the mother’s side and take the mother’s surname.

Traditional Islamic jurisprudence has long emphasised the importance of preserving lineage and social order, but advancements and evolving legal perspectives have prompted scholars to reconsider longstanding rulings. 

This stance stems from the principle that “the child is to be attributed to the bed,” meaning the child’s paternity is linked to the husband of the woman who gave birth. 

Scholars such as Ibn Taymiyyah and Ibn al-Qayyim have taken a less hardline position. They say if the father openly acknowledges the child, attribution and inheritance rights may be granted. They argue that justice and compassion should guide rulings, especially when paternity can be established through acknowledgement.

With advances in DNA testing, many contemporary scholars and legal bodies have adopted a more flexible approach. Yasir Qadhi says if paternity is proven —whether through acknowledgement or scientific evidence — the child’s rights, including inheritance, should be recognised.

He emphasises that Islam’s core principles of justice, mercy, and social welfare support recognising children’s rights. 

Sheikh Abdullah bin Bayyah notes that legal reforms in countries such as Morocco, Tunisia, and Egypt reflect this shift. “They have incorporated provisions allowing children born outside of marriage to be attributed to their biological fathers when evidence, including DNA, confirms paternity. This approach aims to protect the welfare of children and prevent social marginalisation,” he says.

For instance, Dar al-Ifta al-Misriyyah, an Egyptian government Islamic advisory and justiciary, states that if the father acknowledges the child and this acknowledgement is proven, then the child can be attributed to him and has the right to inheritance, whether born within or outside of marriage.

Similarly, IslamQA, a prominent Islamic fatwa website, affirms that public acknowledgement of paternity grants the child inheritance rights. 

The issues has been a hot debate on social media. Supporters of the ruling see it as a significant step toward equality. “Justice has prevailed. Every child deserves equal rights, no matter how they were born,” tweeted human rights advocate Jane Mwangi.

Advocates also emphasised the importance of protecting marginalised children from discrimination.

However, some voiced concerns about the potential impact of the ruling on cultural values and family structures.

“While I support children’s rights, we must also consider the importance of family morals and cultural practices,” posted @KenyansTraditions. Others worried about societal implications, with one user commenting, “Legal rights are important, but we need to think about the impact on our community’s morals and stability.” 

Others urged caution. “Progress is good, but let’s ensure reforms are thoughtful and inclusive of all perspectives,” posted @LegalKenya.

While some called for public awareness. “This ruling is a step forward, but we must continue to educate our communities about the rights of all children,” tweeted activist Lucy Wambui.