Attachment of descent (luhuq), fiqh rulings

Luhuq, in lexicon, is attaining or overtaking; jurists use the root for the attachment of descent, for a dhimmi or apostate going over to the land of war, for attaching the foetus of a slaughtered animal to its dam for lawfulness, for attaching young grazing animals to the zakat count, for attaching accessories to a sale, and in the usul sense for analogy ¹.

Descent is attached to a child by a cause, the first being a valid marriage: the child born to a married woman is attached to her husband, on the hadith that the child belongs to the bed. The conditions are that the husband could father a child, so a boy under nine is not attached by agreement and a castrated man is not for some jurists; that the child is born after at least the shortest pregnancy and within the longest, which the Hanafis and a Hanbali narration put at two years, the Shafi'is and the school of the Hanbalis at four, the settled Maliki view at five, and Ibn Abd al-Hakam at nine months; and that the spouses could have met after the contract ¹.

A corrupt marriage counts like a valid one for attachment under the same conditions ¹. A child born to an unmarried woman after intercourse by mistake, after six months or more, is attached by the majority; al-Qadi Abu Ya'la and others held it is not, since descent attaches only to a valid marriage, a bed, ownership or a mistaken ownership; Ahmad held that whoever is excused the hadd for intercourse, his child is attached ².

Acknowledging descent is obligatory when true and forbidden when false, and it takes two forms: acknowledging oneself, as in saying this is my son, and acknowledging another, as in saying this is my brother. The first requires that the acknowledger be responsible and free to choose, that the senses and the law do not contradict him, and that the one acknowledged confirm him if he can; a minor or insane child may be acknowledged without confirmation ^{2 3}. A dead person may be claimed if the claimant is not suspected of seeking inheritance or of avoiding retaliation ³. The Shafi'is do not allow claiming one who was denied by oath of cursing ³. The Hanafis do not accept attachment through a third party, since an acknowledgement binds only the speaker ³.

If two acknowledge an unknown child who is a minor and neither has proof, the child is put to the physiognomist and attached to the one he attaches it to; if the child is an adult who can confirm, it is attached to the one he confirms, and if he is silent, the physiognomist decides ³. Descent is also attached by testimony, on its conditions ⁴. A master who lies with his slave woman and she bears a child within the period of pregnancy from the act has the child attached; the Malikis, Shafi'is and Ahmad agree, while Abu Hanifa and al-Thawri hold she is not a bed until he acknowledges the child ⁴.

A dhimmi who goes over to the land of war breaks his covenant, since he has become a war against us ⁴. For the Hanafis, an apostate who goes over to the land of war during the option period of a sale, once the judge rules on his going, makes the sale binding; a partnership, agency or partnership in profit is void when a partner goes over, while the apostate who is the agent keeps his partnership, since his acts are suspended ^{4 5}.