What is the legal status of a child born from a captive woman upon whom a captor committed rape when the Hadd was averted due to the semblance of ownership?
General Chapter
Al-Mughni
Book of Jihad
Primary text
The child born to her is free (Hurr), and his lineage is established to the father. This is the view of Al-Shafi'i. The basis is that the sexual intercourse (Wat') was one where the Hadd was averted due to a doubt regarding ownership; therefore, lineage must be established, just as with the captive slave of one's son.
Supporting text
Abu Hanifa holds that the child is a slave and his lineage is not established, because the captors only gain ownership upon division, meaning the act occurred when the captive was not his property. The Qadi rules that if the captive's value is credited to the spoils fund, half of her becomes an Umm Walad (mother of his child) and the other half remains a slave for the other captors, because establishing her as Umm Walad requires conveying ownership, which does not apply to an insolvent person's share in the property of others.