Inheritance of the Illegitimate and the Oath of Condemnation Children

This article is prepared to illustrate the discrimination made by Islamic Shari’a laws against children who were born outside the marriage institution. The legislator defined marriage in Article 11 of the Personal Status Law for Muslims of 1991 as “a contract between a man and a woman with the intention of perpetuity, and it is permissible for each to enjoy each other.” The pillars of marriage for this contract, which are the spouses, the offer and the acceptance, must be met, according to Article 12 of the same law, and each pillar has valid conditions stipulated in Article 13 and Article 14 of the law. The articles also illustrating the discrimination against those who were born during the marriage but the husbands denied them. This article also, aims to assist lawyers who defend freedom of religions or the beliefs and the child rights to refute these discriminative laws and to stand for those children rights.

The article shows the legal pleas that that the lawyers can use in their defences and the procedures they can follow to defend the victims and appeal the decisions of the courts.

Introduction

The issue of inheritance of the illegitimate children condemned by the oath of condemnation children (son/ daughter of Lia’an) is one of the extremely complex issues in the Sudanese legal system due to the close overlap between the laws regulating the status of (illegitimate child) or the child related to the oath of condemnation) in a multicultural and multi-religions country such as Sudan. Although the personal status law for the Muslim did not define illegitimate child, who is born to an unmarried mother who enables a man to have sexual intercourse with her without a legal bond, according to Article 145/1/b of the Criminal Code of 1991; Paragraph 3 of the same article considered marriage unanimously void as adultery, which, as it is mentioned in another article, is a preference for some lower sects over others, and therefore the child resulting from such marriage is considered illegitimate child as well. As for the son of al-La’an, he is the child born to a married mother during the marital relationship; the husband denied the paternity of the newborn and took the oath of al-La’an. The oath of the curse, according to Article 60 of the Evidence Law, is the husband oath which begins by testifying in the name of God against his wife four times; the fifth time he curses himself if he doesn’t tell the truth. Then the wife curses by testifying to the contrary four times; the fifth time she invokes the anger of God if the accusation is true.

It should be noted that one of the three exceptions to the abortion is pregnancy as a result of a crime of rape and the foetus was not yet ninety days old and the desire of the woman to have the abortion, by withdrawing Article 35 of the 1991 Criminal Law. But if the woman have no desire to abortion, or if her pregnancy has exceeded the period of 90 days, then the same description of “illegitimate child” applies to the child. Here, the complete nudity of those who describe such a child as a punishment for his mother's practice of adultery is revealed.

Although the law regulating this issue is the Personal Status Law for Muslims of 1991, but it falls under other laws such as the Evidence Act of 1994 and the Civil Transaction Act of 1984 and the Criminal Procedure Act of 1991. It also falls under another law such as the 1991 Criminal Code. The main reason for this overlap and ambiguity is that the legislator in addressing this issue relied on Islamic jurisprudence that was formulated more than a thousand years ago in a cultural and social environment that differs from the present state of affairs in Sudan in dealing with such case.

Step 1. Legal analysis

The issue of the inheritance of the illegitimate child and the child related to the oath of condemnation raises controversial themes that can be summarized in two parts, namely:

  1. The overlap of the issue of the Inheritance of the Illegitimate Child and the child related to the oath of condemnation with the Criminal Law.
  2. Gender based discrimination regarding the oath of condemnation as a means of proving adultery.

First: the overlap of Inheritance of the illegitimate child and the oath of condemnation child with the Criminal Law.

Legal practices in Sudan normally file a criminal case against any woman who has given birth to a child outside the marriage specified by the legal system in Sudan. Abortion in the first months is often the only way out for many women; sometimes, the newborn is placed on the side of the road to be found by someone and reported to the police, to be taken to a social welfare institution or to be eaten by wild dogs. In other cases, especially in cases of rape, the mother requests that her newborn be placed in a social care institution, but these institutions start first by opening a criminal complaint against the mother. It is difficult for the mother to claim rape in this case, and many prosecutors refuse and then the courts reject such a plea; For example, in the case of the Government of Sudan against F.A.G, numbered MA/GH Execution/3/2008 (Journal of Judgments and Judicial Precedents for the year 2008) the facts are that a person called A.M.G had sex with a married woman named F.A.G without her consent. When she got pregnant, she told her family about what had happened, so her two brothers beat the adulterer, causing him serious harm. So, A.M.G filed a criminal case against the woman's brothers under Article 139 of the Criminal Code of 1991 (Causing Harm). Upon interrogation of the two defendants by the court, they confessed that they had beaten him because he committed adultery with their sister and she got pregnant. The judge ordered to file a report against the complainant A.M.G and Mrs. F.A.G under Article 146 of the 1991 Criminal Code. They were brought to trial before the same court, where the court heard the interrogator and a prosecution witness only. Mrs. F.A.G was questioned and reported that the second defendant A.M.G had coerced her to commit adultery, and that she did not cry or seek help from anyone to avoid troubles. She added that she got pregnant and gave birth, and that she is married to a man working in the Kingdom of Saudi Arabia who had been absent for seven years, and that they have several children. The second defendant was interrogated but denied the incident completely. The trial court issued a judgment convicting Mrs. F.A.G under Article (146) of the Criminal Code, and sentenced her to stoning to death (Hudud punishment). The court rejected the defendant's defences of coercion and the Appeals Court upheld the rejection, saying: (The defendant's claims of coercion are not acceptable to reason, logic, or sound conscience). The Supreme Court addressed this deficiency with jurisprudence, and mentioned in the merits of its decision that: (The accused did not admit under coercion as understood by the member of the Court of Appeals, but rather claims that she committed the crime under coercion.

In short, a woman who gets pregnant as a result of rape faces legal complications when claiming rape, and as such, her child becomes (illegitimate) according to the Personal Status Law. Consequently, he only inherits from his mother and loses the right to inherit from his biological father even if known and defined by the mother.

Second: Gender based discrimination regarding the oath of condemnation as a means for proving adultery

Article (62) of the Evidence Act states that the crime of adultery is proven in any of the following cases, namely: (a) Confession before the court unless it takes place before the ruling is executed, (b) The testimony of four trustworthy men (c) Pregnancy of an unmarried woman (d) The wife's rejection of the oath of condemnation after her husband had taken it.

In the fourth case, the law limited renunciation to the wife, not the husband, which undoubtedly involves clear discrimination against women. Despite the considerable controversy among the Imams as to regard refusal to take the oath of condemnation as a means of proving adultery, the legislator chose the strictest views on this particular issue. The Hanafi and Hanbali scholars, for example, believe that adultery cannot be proved by the wife's renunciation of the oath of condemnation, and Al-Awza’i and El-Hassan agreed with them. The legislator adopted the opinion of the Maliki school of thought when considered renunciation of the oath of condemnation a proof of adultery, it should be noted that the crime of the defamation doesn’t apply to the husband in this case.

In this regard, we mention the Supreme Court's appeal to those in charge of legislation to renounce the rule of proving adultery via the oath of condemnation and pregnancy. It was when the Supreme Court considered the case of the Government of Sudan against KH.F.A, No S.C.GH.A -Execution/2006/60, where Judge Abdelrahman Sharfi said at the end of the ruling: (In conclusion, we have a message to those in charge of legislation in our country: It's high time to codify the provisions of Hudud in accordance with the spirit of our true religion regarding forgiveness and cover-up, and in line with Sharia in narrowing the scope of Hudud. By narrowing the scope of Hudud, putting constraints to prove them, and concentrating on suspicions refuting them, Sharia meant to restrict them. As Al-Kamal ibn Al-Hamam said in this regard (the more restrictions for anything there are, the less it will be), review Fath al-Qadeer. As such, we hope that the Sharia hudud provisions be reformulated to be consistent with what has been mentioned. Some requirements of the prospective approach are to avoid proving Sharia Hudud in the way contained in Article 62/c and Article 64 of the Evidence Act, as well as not deciding the adultery penalty because of the wife renouncing the oath of condemnation as provided for in Article 62/D of the 1993 Evidence Act. We advocate the opinion of El-Hassan, Al-Awza’i, the opinion leaders, and Hanbalis where they consider the wife’s adultery is not proved by renunciation of the oath of condemnation. In Al-Maghni, Ibn Qudamah said: (Since the wife's adultery has not been proved by the oath of condemnation, so, the Sharia Hudud cannot be established in this case as if she did not take the oath of condemnation at all. The evidence is that her adultery is proved either by the husband’s oath of condemnation, her renunciation of such oath or both. The wife's adultery cannot be proved by her husband taking the oath of condemnation only, or her oath of condemnation would be useless and Hudud penalty would not be applicable on her slanderer. It's either an oath or testimony and both are independent regarding proof. The wife's adultery is not proved by her renunciation of oath of condemnation for Hudud are not proved by such an act, but rather by the no-penalty-on-suspicion rule. The wife's renunciation may be due to her extreme shyness or stutter or others. So, the Hudud penalty for adultery which necessitates greater proof than any other Hudud may not be such decided. It's required that the parties describe the act, pronounce the word, among others (the no penalty on suspicion rule) in seeking to eliminate such Hudud. The adultery Hudud cannot be established by renunciation of the oath of condemnation which is a suspicion in itself. It should be noted that the crime of slander does not apply to the husband in this case.

Step 2. Interviewing the victim and collecting primary data

First of all, as we deal with sensitive issues from a human rights perspective, we should criticize the two expressions (illegitimate child) and (the oath of condemnation child) for their discrimination and stigma against persons born out of wedlock. It was more convenient for the legislator to use other terms such as "unsupported children", or "children without parental care", or "children born out of marriage" or other expressions that spare them the stigma they are quite irresponsible for. They are considered children born just like other children and apart from societal laws and judgment of the relationship between the biological father and mother and the laws drafted by the State to treat them. On the other hand, these children may be born as a result of rape, either by physical or moral coercion, or born as a result of having sex with a girl under the age of eighteen, which is the 2010 Child Act treated as rape. Hence, the phrase “inheritance of the illegitimate child” is considered a sort of discrimination against the mother herself. Therefore, the lawyer must exercise caution and be very sensitive when s/he is talking to the mother or the children. The lawyer shall ask the mother about the primary data of the case and full information about the biological father of the child in order to claim the court to hold him responsible for maintenance or to seek for the right of the child to inherit his biological father’s legacy if he died.

 

Step Three: Intervening as a Victim's Representative

First: the criminal case

Sometimes the lawyer represents the defense of the parents accused of committing the crime of adultery, and most of the time he represents the mother only, because the partner turns to be an opponent for fear of punishment. When a lawyer represents a mother who has been accused of adultery or in the case of defamation, the lawyer must use all legal and technical skills to refute the crime of adultery in the first place, then to talk about the rights of the child, and not the crime of adultery. It is sufficient to refer to the text of Article 62/c itself, which considers the pregnancy of a non-married woman, if it is devoid of evidence to prove adultery, and the absence of this likeness of pregnancy opens the door to many legal defenses that cannot be detailed or limited to their differences according to the facts of each case. Article 65 of the Evidence Law stipulates that the hudud punishments be avoided by suspicion, including, for example, but not limited to, the retraction of the confession, the difference of witnesses and the witness's retraction of his/her testimony. The lawyer here must explain all the details of the oath of allegiance and leave the choice to the mother, as we explained above. The lawyer must also adapt oral arguments and written arguments for this purpose, and cite some Sudanese judicial precedents that support his legal position in this regard. Any discriminatory acts provided for by laws.

Second: Personal status lawsuits

The most important lawsuit, in our estimation, is the lawsuit to prove parentage; because the father often denies the paternity in order to escape the punishment of adultery and the societal penalties that follow conviction, leaving the child and his mother to face a dark fate before the law and society forever. Article 96 of the Personal Status Law of 1991 limited the proof of parentage to bed, confession and testimony, but Article 29 of the Evidence Law added the testimony by hearing as an acceptable evidence in parentage claims.

Articles 98 to 104 of the Personal Status Law for Muslims of 1991 detailed the procedures for establishing lineage and situations in which the case is not accepted, as Article 98 stipulates that the lineage of the newborn must be proven in bed, if pregnancy occurs after a minimum period has passed in bed and the meeting between the spouses is possible, and the minimum period For pregnancy, is six months from the date of the contract, and the maximum is a year, according to Article 100. The lineage of the newborn from a sexual intercourse is proven on suspicion, if he was born for the shortest period of pregnancy from the date of sexual intercourse. In clearer words, the birth of the newborn to life after six months from the date of the husband sexual intercourse or after a year from this date is attributed to his father (husband).

Likewise, Article 101 stipulates that paternity is established by confession, even if it is in father a terminal illness, but according to the conditions that the legislator has limited it to in the article.

While Article 102 stipulates that parentage is not proven in the cases mentioned exclusively. Finally, Article 104 stipulates that a court shall not be filed from the heirs of the person who acknowledgment of the denial of parentage, after it has been established by him by acknowledgment. A claim for proving paternity must be filed during the life time of the defendant (the father in most cases) and may not be filed after his death unless it is filed in relation to another claim, such as inheritance, for example. However, paternity cases are the least likely to succeed due to their non adoption of modern means of proof. Such as genetic fingerprint and other evidence to prove parentage. Despite this, the good preparation of the case by perusing the local laws and international charters ratified by Sudan in preparation for the case to proceed to the Constitutional Court to declare these discriminatory articles unconstitutional is the way through which justice for these child victims can be brought about and the desired change brought about.

Step 4. Appealing decisions affecting the interests of the victim

If the Court of first instant issued a decision affects the interests of the child or his mother, the lawyer has to appeal this decision to Court of Appeal within 15 days from the date of decision; and If the Court of Appeal supported the decision of the Court of first instance, its decision should be appealed to the Supreme Court. And if the same happened at the Supreme Court, then the appeal should be submitted the Review department at the Supreme Court.

Finally, after the exhaustion of these stages of litigation, the lawyer shall submit a constitutional action before the Constitutional Court claiming the Court to declare unconstitutionality of articles (406) of the Personal Status for Muslims Act 1991 and articles (145) and (146) of the Criminal Act of 1991based mentioned above.