Exploratory Study of Rights of an Illegitimate Child under the Shari'ah and International Child Rights Instruments

Abstract

This paper aims at conducting an exploratory study of the rights of children born outside of a lawful wedlock (also described as illegitimate children) with a view to exploring their “right to rights” (as postulated by Hannah Arendt) under both the Sharīʿah and international instruments on child rights. The paper proceeds on the common belief that in many legal cultures, including the Sharīʿah, such children are deprived of their natural and fundamental rights, which some Eurocentric scholars believe the international child rights instruments came to rectify. The paper finds that the Sharīʿah, like the international instruments, recognises and protects the rights of all children including the illegitimate children. However, unlike the international instruments, the Sharīʿah restricts certain rights for the parents (particularly the putative father) of those children, which consequentially affect the children because Sharīʿah does not dissociate the morality behind the unlawful process of the child’s birth from its legal consequence. The paper adopts a doctrinal method of legal research by conducting a qualitative documentary and content analysis of primary and secondary sources of legal research. The paper concludes that the difference between the rights of illegitimate children under the Sharīʿah and international instruments on child rights is as a result of the different values and sanctity attached to the institution of marriage by both systems.