Extra-Marital Child (Walad Al Zina) and His Right to Maintenance (Nafaqah): A Comparason of Islamic Law and South African Common Law

Islamic law forbids fornication and adultery (zina) because they result in several societal problems such as bitterness in relationships, spread of diseases and the confusion of lineage. Any child born because of zina is regarded as walad al zina (an extra-marital child). There is consensus amongst the various Islamic schools of thought (madhab) that an extra-marital child (walad ala zina) has no relationship with his or her biological father. As a result of this absence of connection, the biological father faces no legal obligation to maintain his extra-marital child. On the contrary, every parent regardless of marital status has a full legal obligation to maintain his or her children under the South African common law. It is submitted that the exclusion of an extra-marital child from receiving child maintenance from his biological father merely because he was born outside marriage, does not promote the principle of the best interest of the child at all. Furthermore, the exclusion also constitutes a violation of the child’s equality rights and dignity and is therefore unconstitutional.