To whom does the *Wala'a* belong when a man frees his slave woman who has children by another slave, and later that slave father is freed?

General Chapter

Al-Mughni

Book of Walā' (Patronage)

Book 33 · Issue 2 · Bab 1

Open in Qurani

Primary text

If a man frees his female slave (*amatuhu*), and she bears children by a slave man, those children are born free. Initially, the *Wala'a* of these children belongs to the master of the mother because he was the cause of their freedom (*in'am*). If the father slave is subsequently freed by his own master, the *Wala'a* transfers to the freed father and thereby to his own master, inheriting the mother's master's claim. This transfer occurs because while the father was enslaved, he could not legally be an inheritor or a guardian in marriage, severing his lineage connection to his children, similar to the child of *li'an* (mutual cursing). Upon the father's manumission, his lineage rights are restored, and the *Wala'a* shifts back to him and his masters. This is the view held by the majority of the Companions and jurists, reported from Umar, Uthman, Ali, Al-Zubayr, Abdullah, Zayd ibn Thabit, Marwan, Sa'id ibn al-Musayyib, Al-Hasan, Ibn Sirin, Umar ibn Abd al-Aziz, and Al-Nakha'i. It is also the opinion of Malik, Al-Thawri, Al-Awza'i, Al-Layth, Abu Hanifa and his companions, Al-Shafi'i, Ishaq, and Abu Thawr.

Supporting text

A dissenting view holds that the *Wala'a* does not transfer from the mother's masters to the father's lineage. This opinion is reported from Rafi' ibn Khadijah, Malik ibn Aws ibn al-Hadathan, Al-Zuhri, Maymun ibn Mihran, and Humayd ibn Abd al-Rahman, and David. Their evidence is that *Wala'a* is like the bond of lineage (*nasab*), which, once established, cannot be removed from the person to whom it was attached. A narration suggesting this view was attributed to Uthman and Zayd was refuted, with the famous ruling from Uthman supporting the transfer of *Wala'a* to Al-Zubayr over Rafi' ibn Khadijah.