What is the legal status of a female slave (*Jariyah*) owned by a son, if the father has sexual intercourse with her and fathers a child?
General Chapter
Al-Mughni
Book of Freeing Mothers of Children
Primary text
If a son has sexual intercourse with his father's female slave, and the father then has intercourse with her and fathers a child, there is a narration from Ahmad concerning the father having intercourse with the son's female slave. If the father had possession (*qabdan*) of her and the son had not yet had intercourse with her, she becomes the mother of the father's child (*umm walad*), and the son has no claim over her. The apparent meaning of this suggests that if the son had intercourse with her, she does not become an *umm walad* for the father because the son's intercourse renders her permanently forbidden (*tahrimun mu'abbadan*) to the father, akin to intercourse by a non-related man. Consequently, under this view, the father does not own her, nor is she freed upon his death.
Supporting text
An alternative possibility suggests that the ruling of *istilad* (becoming *umm walad*) is established for her without making her lawful for the father. This is analogous to when a man has intercourse with his own slave whom his son had previously sexually possessed; she becomes his *umm walad* while remaining permanently forbidden to him. This is because the father's intercourse, derived from a semblance of ownership (*shubhat al-milk*), warrants the ruling of *umm walad*, just as if the son had not had intercourse with her at all.