SPECIAL CASES

1. Child in the womb

a. 2 Conditions
 The foetus should exist in the womb during the death of the praepositus
 The foetus must be born alive

b. Gestation period
 Minimum is 6 months
1. Authority
a. Al-Ahqaf: 15
i. The period for pregnancy and suckling is 30 months
(period of weaning)

b. Al-Baqarah: 233 & Luqman: 14

i. Period of suckling is 24 months

c. Statutory provisions – 6 qamariyyah months

i. Section 110 IFLA
ii. Section 111 Islamic Family Law Kelantan, Negeri
Sembilan, Selangor, Perak Enactment 2004

 Maximum period (can claim paternity)

1. Hanafi – 2 years
2. Maliki – 5 years
3. Syafi and Hanbali – 4 years
4. Statutory provision – 4 qamariyyah years
a. S 111 of IFLA
i. Where a child is born more than four qamariah years
after the dissolution of marriage either by the death of
the man or by divorce, the paternity of the child shall
not be established in the man unless he or any of his
heir asserts that the child is his issue

b. S 112 of IFLA
i. Where a woman not having remarried, makes a
declaration that the period of ‘iddah has been
completed, whether the period is for death or divorce,
and she is subsequently delivered of a child, the
paternity of the child shall not be ascribed to her
husband unless the child was born less than four
qamariah years from the date of the dissolution of the
marriage either by the death of the husband or by
divorce
 c. 3 calculations
 If the child is presumed dead
 Boy – reserve the maximum portion as boy, if girl, distribute the balance
 Girl

2. Missing person
a. Determine who is missing
 Praepositus/deceased
1. Normal death
a. Need to wait for 7 years, apply for judicial decree from the high
court for presumption of death

2. Special peril
a. No need to wait for 7 years
b. Declaration by the government, then can proceed for
presumption of death

3. Date of death
a. Date of judicial decree is the date of death
b. Only legal heirs that are alive after the declaration is entitled to
inheritance

 Legal heir
1. 2 calculations
a. Presuming the person is alive
i. Can straightaway distribute the estate of deceased, but
may reserve for his portion
ii. After 7 years, presumed dead, distribute the balance

b. Presuming the person is dead

2. Date of death
a. Date of missing is the date of death
b. If missing before the death of deceased, not entitled