Fathwa - A case of incestuous marriage based on doubtof lineage

Question
Assalaamu alikum wr wb,Three months ago, our daughter moved back home
with us from her (my husband's brother) uncle and Aunty's house , a
few weeks later we found out that in the pastfour years she and her
uncle were married secretly, on the grounds that her father is not
really her father - she stating that she has done DNA test between her
and her uncle and there is no relation., and the uncle state that
based on (raba'ib). They kept this marriage hidden from anyone &
everyone ( except those involved, 3 of the uncles friends & whoever
married them) even from his first wife (Aunty) until late last year.
They still continue this relationship even now & even though we have
said her father is her biological father & for her to stop. From
Islamic point of view, I would like to know: Parenthood: A) the
prophet said the child belong's to the man of whom the women she slept
with, therefor I declare by Allah SWT that my current husband is the
biological father of her, there is no benefit for me to lie as I have
gone through bad life experiences and choices and I have disclosed
them to my family about my past. Marriage: B) my daughter at age of 16
year, supposedly she appointed a friend of heruncle as her wali, while
her father and her (elder brothers who are Muslims but not fully
practicing) are there, does she have right to dothis ?, will this
marriage be nullified based upon rights of father? Correction: C) what
must be done to correct this mess, including what steps one must take
to correct the relationship with Allah SWT first and foremost(tubah)
then towards her parents, family and community. D)what must Aunty do
to retain her marriage or what choice she has, noting that she is
pregnant with 3months to go. E) what we must do as parents and Aunty
towards them if they choose to live a live of sin? Please respond to
this as soon as possible, and ifpossible please retain ourdetails and
this question from publishing if possible.
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify
that there is none worthy of worship except Allaah, and that Muhammad
, is His Slave and Messenger.
If the case is as you have stated that that man is the paternal uncle
of your daughter, then marrying her is a grave sin and it is invalid.
That is because it is a form of incest and requires Hadd (i.e.
corporal punishment) according to the opinion of the majority of
scholars for the one who did it while he knows well its prohibition,
and the childcannot be attributed to him in that case unlike if he did
it ignorantly, i.e. he will not be subjected to Hadd and the child
willbe attributed to him. For details, kindly refer to Fatwa 87416 .
Accordingly, it is not permissible for him to have sexual intercourse
with her; rather, they must be separated; her guardian must be firm
with her and not let him approach her. The DNA testing is not taken
into account, for DNA testing is not relied upon in denying the
confirmed lineage as stated in a decision made by the Islamic Fiqh
Council concerning this, which reads: " It is not permissible to use
DNA analysis to confirm the paternity of children whose lineage has
already been legally confirmed. The concerned authorities are to
prevent this, and impose deterring sanctions in this regard in order
to protect people's reputations and to safeguard their lineage. " For
more benefit, p lease refer to Fataawa 122944 and 90098 .
If the laws in your country do not grant you the right to separate
between them, you should try to bring her toa Muslim country to raise
the case to a Sharee'ah-based court.
Thus, if this marriage is invalid in principle and according to the
consensus of scholars, there is no point to discuss the fact that your
daughter appointed a friend as her Wali or the like. If she turns to
Allaah The Almighty in sincere repentance, then Allaah The Almighty
will accept her repentance as He TheExalted has promised saying (what
means): { But indeed, I am the Perpetual Forgiver of whoever repents
and believes and does righteousness and then continues in guidance. }
[Quran 20:82]
Also, Abu Hurayrah narrated that the Messenger of Allaah , said: "
Whoever repents before the sun rises from the west, Allaah will accept
his repentance. " [Muslim]
For more benefit on the conditions of repentance,please refer to Fatwa 86527 .
In case she repents, she should be treated kindly and not be blamed
for what she had done in thepast. Also, she has to please her parents
for she made them angry because of her actions. But if she insists on
having a relationship with her paternal uncle and it is not possible
to separate them, then she and her uncle should be deserted if it is
expected that deserting them will be beneficial for them. Indeed,
deserting the sinner is permissible if there is a benefit to be
fulfilled by that as scholars explained. For more benefit, please
refer to Fatwa 18611 .
As for the uncle's wife, if her husband insists on having a
relationship with his niece, then we advise her to seek divorce from
him and notremain with him in marriage for there is no good for her in
living with a man who commitsincest.
Finally, we should note that whoever committed a sin has to, along
with repenting from it, conceal his sin and not tell anyone in order
not to remove the screen of Allaah The Almighty for the Prophet ,
said: " Whoever has committed any of such filth should conceal himself
with the concealment of Allaah. " [Al-Bayhaqi and Maalik
inAl-Muwatta']
Allaah Knows best.

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