Islam: Questions And Answers - Jurisprudence and Islamic Rulings: Transactions - Part 5

ISLAM: QUESTIONS AND ANSWERS

Jurisprudence and Islamic Rulings: Transactions - Part 5 Volume 26 of a Series of Islamic Books by Muhammad Saed Abdul-Rahman

i

Islam: Questions And Answers Volume 26 Jurisprudence and Islamic Rulings: Transactions - Part 5

i

ii

Islam: Questions And Answers Volume 26 Jurisprudence and Islamic Rulings: Transactions - Part 5

Muhammad Saed Abdul-Rahman B.Sc., DipHE

iii

© Muhammad Saed Abdul-Rahman, 2004 ISBN for all volumes 1 86179 080 5 ISBN for volume 26 paperback 1 86179 449 5 ISBN for volume 26 hardback 1 86179 450 9 ISBN for volume 26 pdf eBook 1 86179 451 7 ISBN for volume 26 Microsoft eBook 1 86179 452 5 ISBN for volume 26 Palm eBook 1 86179 453 3 All Rights reserved

British Library Cataloguing in Publication Data. A Catalogue record for this book is available from the British Library

Designed, Typeset and produced by: MSA Publication Limited, 4 Bello Close, Herne Hill, London SE24 9BW United Kingdom

iv

Contents Introduction .............................................................................. 1 Chapter 1................................................................................... 3

Transactions ........................................................... 3 Divorce ............................................................................ 3 36580: He pronounced divorce three times but the qaadi wrote it down as one divorce. The ‘iddah has now ended and he wants to take her back .............................................................. 3 47335: Her husband drinks alcohol; should she stay with him? ...................................................... 6 49719: Their father is senile and divorced their mother – did divorce really take place? And should they put him in a home for the elderly? .......... 8 47040: Man divorcing his wife on his parents’ orders ........................................................................ 11 36761: Ruling on divorce via e-mail ........................ 14 13253: Married to a Christian woman – what should he do next? .................................................... 16 44923: His mother wants him to divorce his second wife so that no one else will follow his example and marry more than one wife ................... 21 36548: What is the relationship of a woman to the man who has divorced her? ................................ 23 23269: Does touching with desire count as taking back a divorced wife? .................................... 25 34579: She wants a divorce but he does not want to divorce her ................................................... 27 31778: It is not a condition of divorce that the wife should know or that she should be divorced face-to-face ................................................ 29 11435: He divorced his fourth wife and wants to marry another; should he wait until her ‘iddah ends? ............................................................. 31 v

22850: He said to his wife, “I don’t want a woman who is like this.” Is this regarded as a divorce (talaaq)? .................................................................... 31 20660: He intended divorce but he did not speak the words out loud. Did divorce take place? ............ 32 39941: He swore to divorce her if she visited her family, and now he has recanted. Does he have to offer kafaarat yameen? ............................................. 33 34164: He thought of divorcing his wife ................. 37 34571: Divorcing a wife because of her bad attitude ...................................................................... 40 26247: Khula’: definition and how it is done ........... 41 26221: He said that his wife would be haraam to him if he took a second wife and now he wants to marry again ................................................ 44 23463: Man writing romantic letters to his former wife ............................................................... 47 62839: Whispers from the Shaytaan and the remedy for them ....................................................... 50 22680: He left the house and went away. Is this counted as a talaaq (divorce)? .................................. 55 26163: She does not get on with her husband; should she leave him and make her father angry?.... 56 13803: Her husband beats her severely .................... 59 26810: He was told that his wife had revived a previous forbidden relationship so he divorced her ............................................................................. 62 14569: The ‘iddah of a woman divorced by khula’ and her going back to her husband ................ 66 13243: Some causes of divorce ................................ 67 13254: Divorce from a husband who is addicted to smoking ................................................................ 68 22034: Divorce uttered in anger ............................... 70 9593: Does signing a divorce paper count as divorce? .................................................................... 72 21592: Ruling on asking for a divorce from a husband who has some medical problems ............... 72 vi

21413: A number of questions about divorce ........... 76 20002: Is it permissible to live with a husband who takes out a riba-based loan? ............................. 78 11798: How should a man take back his wife after divorcing her? .................................................. 80 12496: A husband has not been fulfilling his responsibility towards his wife for five years........... 82 11681: Does leaving one’s wife for a long time count as divorce? ...................................................... 84 14219: Doubt concerning the number of divorces (talaaq) ...................................................................... 86 12287: Divorcing a woman by talaaq when she is pregnant .................................................................... 86 10438: Can he take his wife back after her ‘iddah has ended? ..................................................... 88 14024: Is it permissible for a man who has divorced his wife by khula’ to go back to her during the ‘iddah? .................................................... 90 9787: Can a person divorce his wife who is the mother of his children?............................................. 91 12902: Is it better for a man to divorce his second wife with whom he quarrels, so that she can have some peace? ........................................ 92 12179: Can the qaadi (judge) annul a marriage without the husband being present? ......................... 95 5684: Is premature ejaculation grounds for divorce? .................................................................... 95 10209: He divorced her but did not send her the divorce papers .................................................... 96 5792: He said, “I don’t think my wife belongs to me” ....................................................................... 97 5225: He wrote a letter of divorce to his wife intending to send it at the end of the month ............. 97 1859: Examples of acceptable reasons for asking one’s husband for khula’ ............................... 98 11105: Is a divorce done by the judge valid? ........... 99 10186: She is divorced – should she go back vii

to her family’s country? .......................................... 100 9481: Can she ask for divorce because he is beating her? ............................................................ 101 10613: Does a husband have to be patient with his wife all the time and not divorce her? .............. 102 11761: She said to her husband “Divorce me”, and he said, “I agree” ............................................. 105 5373: She got divorced overseas and the divorce papers are not recognized by the official department ................................................. 105 6125: Thrice-divorced at one time ......................... 106 6532: He wants to help a divorced woman ............ 107 6315: The one who causes the divorce of a woman .................................................................... 109 4459: Does the father have to pay for the children to travel to visit their divorced mother? ... 111 4343: When a Muslim signs papers divorcing his wife in front of a non-Muslim judge ................ 111 3292: He swore that if he did something, the first wife he married would be thrice-divorced ...... 113 2523: Insinuating thoughts (waswaas) of divorce .................................................................... 115 2218: A man doesn’t want to live with his wife but doesn’t want to divorce her for the sake of the children ............................................................. 116 2373: Giving talaaq (divorce) three times at once is bid’ah ......................................................... 120 488: Ruling on a Woman Asking for a Divorce from Her Husband .................................................. 121 45174: Ruling on divorce at a moment of anger .... 123 Chapter 2............................................................................... 127

Transactions ....................................................... 127 Waiting Period of Widow or Divorcee ........................ 127 21398: ‘Iddah of a woman who did not know that her husband has died ....................................... 127 5163: Does ‘iddah apply in the case of khula’? ..... 127 viii

14038: Can he take his wife back after her ‘iddah has ended? ................................................... 131 10670: What a recently-widowed woman is not allowed to do .................................................... 133 8867: Her husband died during her ‘iddah from her final divorce; does she have to observe the #145;iddah of one who has been widowed? .......... 135 10833: She apostatized and married a Christian; now she has returned to Islam and has left that Christian man – how long is her ‘iddah? .................................................................... 136 10426: She became Muslim after committing zinaa; does she have to wait (‘iddah) before getting married? ..................................................... 137 6240: Should she wait out her ‘iddah in the place where her husband died, or go back to her homeland? ........................................................ 138 5288: Ruling on a woman whose husband has disappeared ............................................................. 140 4706: What Must the Mourning Widow Abide By ................................................................ 142 5217: how a woman who is previously married should get married .................................................. 144 2628: Rulings on the mourning of a woman whose husband has died ......................................... 146 311: Intercourse with wife during ‘Iddah ............... 152 31: Different types and periods of ‘idda (waiting period) ...................................................... 153 145: Husband and wife must stay in same house during iddah ................................................. 153 Chapter 3............................................................................... 156

Transactions ....................................................... 156 Breast Feeding ............................................................. 156 47721: The limits within which a married couple may enjoy intimacy with one another, and the ruling on a man suckling from his wife ..... 156 ix

13534: A Muslim woman may breastfeed a Christian child ........................................................ 160 45620: Do her children from breastfeeding have any relationship with her second husband? ... 160 45819: Can he marry the daughter of a woman who was breastfed by his mother? ......................... 164 36375: Their father’s wife breastfed a baby girl – is she regarded as their sister? ............................. 166 27280: Each of them breastfed the child of the other; do any rulings result from that? ................... 168 34557: She is not permissible for him to marry because she is his maternal aunt through breastfeeding (radaa’ah) ......................................... 172 13357: He is married to his maternal aunt through breastfeeding ............................................. 174 20759: Ruling on breastfeeding and the wisdom behind it .................................................................. 179 40226: He breastfed from his maternal aunt twice; can he marry her daughter? ......................... 182 13750: The blessing of natural breastfeeding ......... 184 12454: It is permissible for a woman to breastfeed her child before doing ghusl ................. 186 21203: Breastfeeding a child during pregnancy ..... 187 4049: Ruling on milk banks ................................... 188 1488: The rules of Radaa’ still apply if the child drinks the breast-milk from a bottle .............. 188 804: Uncertain of the number of breast-feedings ... 189 721: Breast-feeding a child over two years old ...... 191 Chapter 4............................................................................... 193

Transactions ....................................................... 193 Custody ....................................................................... 193 43476: He is having a problem with his second wife and he fears for his daughter .......................... 193 20705: If a divorced woman remarries, she has no right to custody .................................................. 196 21612: If a woman decides to leave the city x

of her ex-husband, who gets custody of their child? ...................................................................... 198 9463: If she asks for a divorce then gets married, does she have the right to custody of her children? ........................................................... 200 21516: Custody of a Muslim’s children from a kaafir wife if he dies ............................................ 202 8189: Who has more right to custody in Islam? ..... 204 5234: Who has more right to custody of the child – the father or the mother? ............................ 207 Question: ................................................................ 207 4038: Ruling on aborting or caring for a child whose mother has AIDS ......................................... 209 Chapter 5............................................................................... 211

Transactions ....................................................... 211 Adultery/fornication and Homosexuality .................... 211 9292: Was Maa’iz married? ................................... 211 39770: Ruling on being intimate with a non-mahram woman without intercourse ............... 215 27176: He wants to repent from homosexuality and needs help ........................................................ 220 33591: An illegitimate daughter is asking, Whose daughter am I? ............................................ 230 26847: A book which includes lies against the Prophet (peace and blessings of Allaah be upon him) concerning the ruling on zina ........... 234 26067: He hired a woman to serve him then he agreed with her that she would be his slave ...... 239 624: Repenting From Adultery ............................... 245 21223: She wants to give up prayer as she feels shy before Allaah because she is committing zina ...................................................... 246 1397: Acceptance of righteous deeds from one who commits zina .................................................. 252 22769: Will an adulterer be deprived of al-hoor al-‘ayn? What is the meaning of the xi

hadeeth “Whoever commits adultery, the same will be done to him (i.e., his womenfolk)”? ........... 254 13707: Can she marry someone who practices homosexuality? ...................................................... 257 12707: Tragedy suffered by a girl whose mother’s husband does not fear Allaah .................. 258 20983: The punishment for zina (fornication, adultery) and how to keep oneself from going back to it ................................................................. 261 12515: Is it permissible for a zaani (fornicator) to marry a believing woman? ................................. 270 14381: Is it permissible for one who has committed zina (fornication or adultery) to get married after he or she has repented? ............... 271 13331: Abortion of a foetus resulting from a zina relationship ..................................................... 274 11195: He committed adultery and his conscience is troubling him, and he wants to get rid of the foetus................................................. 277 10340: He committed zina with a woman and wants to marry her, but her father refuses .............. 284 5967: His parents admitted to him that he was conceived in zinaa. Whose name should he take?................................................................... 285 5177: Can those who have committed homosexual acts be forgiven, and is it permissible for such a person to get married? ........ 286 6926: How can zinaa be proven? ........................... 290 2103: If she committed zinaa when she was not Muslim and had a child, then she became Muslim, what should she tell other people and the child himself? ............................................ 290 3625: Her past is giving her sleepless nights and she feels bad for her child ................................ 292 3006: Ruling on illegitimate children .................... 293 3013: Is zinaa intercourse only? ............................. 294 751: Why adultery, gambling and the flesh xii

of swine are haraam................................................ 300 373: A woman who committed adultery and is contemplating suicide ......................................... 301 839: Abrogation of the verse ordering the confinement of an adulteress in a house................. 303 728: Repentance of the Fornicator ......................... 307 1201: Responsibility Towards the Child of Fornication ............................................................. 309 117: Woman who accepts Islam and whose husband is a kaafir .................................................. 310 35: Tawbah (repentance) from homosexuality ....... 311 32: Tawbah (repentance) from fornication and what is the status of a child .................................... 312

xiii

xiv

Transactions - Part 5

Introduction Praise be to Allah, the Lord of the worlds, and peace and blessings be upon His last Messenger, Prophet Muhammad, and on his family and his companions. This book, Jurisprudence and Islamic Rulings: Transactions - Part 5, is the twenty-sixth volume of a series of authoritative Islamic books entitled Islam: Questions And Answers. The overall series discusses issues relevant to Islam, and present accurate and reliable information based on the true beliefs and practices of the Prophet (Peace and Blessings of Allaah be upon Him) and his companions. The objectives of the various books include: to teach and familiarize Muslims with various aspects of their religion to be a source for guiding people to Islam to assist in solving the social and personal problems of the Muslims in an Islamic context The books are directed towards Muslims and non-Muslims alike. Subject areas include, but are not limited to, Islamic fiqh and jurisprudence, Islamic history, Islamic social laws (including marriage, divorce, contracts, and inheritance), Islamic finance, basic tenets and aqeedah of the Islamic faith and tawheed, and Arabic grammar as it relates to the Qur'an and Islamic texts. The books are compilations of questions and responses about Islam, from both Muslims and Non-Muslims. The responses are handled mainly by internationally re-nowned Islamic shaykhs and scholars, including Shaykh al-Islam Ibn Taymiyah, Ibn Katheer, al-Albaani, Shaykh Ibn Baaz, Ibn al-Jawzi, Ibn al-Qayyim, Al‘Izz ibn ‘Abd al-Salaam, al-Nawawi, Shaykh ‘Abd al-Kareem, al Khudayr, Al-Dhahabi, al-Qurtubi, Al-Sindi, al-Shawkaani and al-Bastawi using only authentic, scholarly sources based on the Qur'an and sunnah. References, which include Haashiyat Ibn Maajah, Sharh Saheeh Muslim, Fataawa al-Lajnah al-Daa’imah, 1

Jurisprudence and Islamic Rulings

Silsilat al-Ahaadeeth al-Da’eefah, Al-Mawsoo’ah fi Ahaadeeth al-Mahdi al-Da’eefah wa’l-Mawdoo’ah, Al-Manaar al-Muneef and Fataawa Islamiyyah, are provided where appropriate in the responses. The book provides the reader with cross references of other pertinent responses not necessarily in the same volume, but also in other volumes of the series. However, each volume is complete in itself. The book records accurately the answers the contributing Sheikhs and scholars gave to the questions put to them. These are not necessarily the answers which other sheikhs and scholars would have given. Depending on circumstances, for example, Islam permits different solutions to some questions The book also provides the reader with cross-references to other pertinent responses not necessarily in the same volume, but also in other volumes of the series. However, each volume is complete in itself. It is intended that this present series of Books will cover the following subject areas (insha-Allah): Aqeedah (Basic Tenets of Faith); Usool ul-Fiqh (Science of evidence that serve as basis for Fiqh), Fiqh (Jurisprudence and Islamic Rulings), Da'wah (Inviting others to Islam), Aadaab (Manners), Akhlaaq (Character and Morals), Tareekh wa ul Seerah (Islamic history and biography), Tarbiyyah (Pedagogy, education, and upbringing) and Mashakil Nafsiyah wa Ijtimaa'yah (Psychological & Social Problems). May Allah reward the owners and maintainers of www.islamqa.com for granting me full, exclusive, assignable and transferable rights to use and display all the questions and answers needed for the compilation of these books. May Allah grant everyone involved in the promotion of this project good in this world and the Hereafter and protection from the fire of hell.

2

Transactions - Part 5

Chapter 1 Transactions Divorce 36580: He pronounced divorce three times but the qaadi wrote it down as one divorce. The ‘iddah has now ended and he wants to take her back Question: I divorced my wife about eight years ago. When I asked the qaadi to record the divorce I said: “I divorce my wife So and so the daughter of So and so three times.” When I did that I knew what he had written down because I am an educated man, but when the scribe wrote it down in the records, he wrote it as one divorce. This gave my wife the hope that I would take her back and she has not remarried until now… Now I want to take her back, and her family also wants that. Should I go against my intention and proceed on the basis of what is written in the records or not?. Answer: Praise be to Allaah. The scholars differed concerning the ruling on one who divorces his wife by saying “I divorce you thrice”. The majority of scholars are of the view that this means that divorce has taken place three times; others are of the view that divorce takes place only once.

3

Jurisprudence and Islamic Rulings

Shaykh ‘Abd al-‘Azeez ibn Baaz (may Allaah have mercy on him) was asked: A man divorced his wife by saying “I divorce you thrice”; what is the ruling on that? He replied: If a man divorces his wife three times with one word, such as saying, “You are thrice divorced”, the majority of scholars are of the view that the woman is indeed thrice divorced and becomes forbidden for her husband until she has been married to another man in a serious marriage in which the new husband has intercourse with her and they only separate as a result of death or divorce, not a tahleel marriage (i.e., a marriage of convenience aimed at making it permissible for her to remarry her former husband). They quoted as evidence for that the fact that ‘Umar ibn al-Khattaab (may Allaah be pleased with him) counted such a divorce as being three and judged among people accordingly. Other scholars were of the view that this is to be regarded as a single divorce, and the husband may take her back so long as the ‘iddah has not yet ended. If the ‘iddah has ended then she may marry him with a new marriage contract. They quoted as evidence for that the report narrated in Saheeh Muslim from Ibn ‘Abbaas (may Allaah be pleased with him) who said: “At the time of the Messenger of Allaah (peace and blessings of Allaah be upon him), the time of Abu Bakr (may Allaah be pleased with him) and the first two years of the caliphate of ‘Umar (may Allaah be pleased with him), a threefold divorce was counted as one. ‘Umar said: “People are being hasty with regard to a matter in which they should not rush. Let us count it as three and judge between people accordingly 4

Transactions - Part 5

.” According to another report narrated by Muslim: Abu’lSahba’ said to Ibn ‘Abbaas (may Allaah be pleased with them): “Was not three counted as one at the time of the Messenger of Allaah (peace and blessings of Allaah be upon him) and the time of Abu Bakr (may Allaah be pleased with him) and the first three years of the time of ‘Umar (may Allaah be pleased with him)?” He said: “Yes,” They also quote as evidence the report narrated by Imam Ahmad in al-Musnad with a jayyid isnaad from Ibn ‘Abbaas (may Allaah be pleased with him), that Abu Rakaanah divorced his wife by saying “I divorce you thrice”, then he regretted it, so the Prophet (peace and blessings of Allaah be upon him) returned her to him with one word and said, “This is only one (divorce).” This hadeeth and the one before it are to be understood as referring to divorcing by saying “I divorce you thrice”, in order to reconcile these two hadeeths and the verse in which Allaah says (interpretation of the meaning): “The divorce is twice” [al-Baqarah 2:229] “And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband. Then, if the other husband divorces her, it is no sin on both of them that they reunite, provided they feel that they can keep the limits ordained by Allaah. These are the limits of Allaah, which He makes plain for the people who have knowledge” [al-Baqarah 2:230] This was the view of Ibn ‘Abbaas (may Allaah be pleased with him) according to a saheeh report narrated from him; according to the other report narrated from him he shared the view of the majority. The view that they should be 5

Jurisprudence and Islamic Rulings

regarded as one divorce was narrated from ‘Ali, ‘Abd alRahmaan ibn ‘Awf and al-Zubayr ibn al-‘Awwaam (may Allaah be pleased with them). This was also the view of a number of the Taabi’een, Muhammad ibn Ishaaq the author of al-Seerah, and a number of the earlier and later scholars. It was also the view favoured by Shaykh al-Islam Ibn Taymiyah and his student Ibn al-Qayyim (may Allaah have mercy on them). This is also my view, because that is following all of the texts, and because it is also more merciful and kind to the Muslims. Fataawa Islamiyyah, 3/281, 282. It seems that the qaadi was also of this view, which is that the threefold divorce counts as one divorce. Based on this there is nothing wrong with taking her back. But after the ‘iddah is over you cannot take her back, rather you have to make a new marriage contract with her. With regard to taking her back after the ‘iddah is over – i.e., after three menstrual cycles – this is not valid, because once a woman’s ‘iddah is completed she becomes a “stranger” for her husband and she is not permissible for him except with a new marriage contract. Fataawa Islamiyyah, 3/293. And Allaah knows best. Islam Q&A (www.islam-qa.com) 47335: Her husband drinks alcohol; should she stay with him? Question: My sister is married to a man who drinks alcohol and is 6

Transactions - Part 5

virtually addicted to it. He also stays up at night a great deal. She got tired of advising him and asking him to give it up, and he refused to do so. Is it permissible for her to live with him knowing that she has two children from him. She is in another Arab country and is suffering from loneliness. What do you advise her to do, may Allaah reward you?. Answer: Praise be to Allaah. Firstly: we ask Allaah to help your sister to deal with this calamity and to bring her relief, and to guide her husband to give up this major sin in which he is persisting. With regard to the ruling on her staying with him, it is permissible for her to do so if she is certain that she and her children will be safe. Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him) said: I think that if she has advised him and he has not responded, then she has the right to ask for an annulment of the marriage. But there may be reasons why she cannot annul the marriage, because she has children and annulment may cause further problems. If his sin does not reach the level of kufr, then there is no sin on her if she stays with him for fear of evil consequences. But if his sin reaches the level of kufr, such as if he does not pray, then she should not stay with him a second longer. Al-Liqa’ al-Maftooh, Q. 518. Secondly: Our advice to her is that she should weigh up what is in her best interests, and consult her family and relatives, who know her situation best. Then she should ask Allaah’s guidance (by praying istikhaarah), for Allaah will never let her down. As the report says: No one loses 7

Jurisprudence and Islamic Rulings

by praying istikhaarah and no one regrets consulting others. Whether she chooses to annul the marriage or to stay, let her accept what Allaah has decreed for her and be patient and seek reward. Allaah says (interpretation of the meaning): “but give glad tidings to As Saabiroon (the patient)” [alBaqarah 2:155] And Allaah knows best. Islam Q&A (www.islam-qa.com) 49719: Their father is senile and divorced their mother – did divorce really take place? And should they put him in a home for the elderly? Question: My father is bedridden and very sick; sometimes he does not know what he is saying, and at other times we find that he is very focused and can calculate money. He often insults religion and has weak eyesight and cannot hear at all. Often he urinates in the bed then throws his urine on the floor, then when we come and ask him, sometimes he denies it and sometimes he does it to annoy us and force us to wipe it up. One time my mother did wudoo’ then he called her, so she went to him, and he threw urine at her. She told him off and he said: “I am going to divorce you.” A little while later he said, “You are divorced.” What about this divorce? How should we deal with this father who is now in a very bad state and we cannot bear it. Can we put him in a home for the elderly?. Answer: Praise be to Allaah. 8

Transactions - Part 5

It seems from what your father is doing that he has reached the stage of senility, at which the obligations of sharee’ah are waived, so he is not expected to pray or fast, and any vows, oaths or words of divorce spoken by him are invalid. If you can be patient and put up with the things he does, then you should do that. If you cannot bear it, then there is nothing wrong with you taking him to a home that takes care of the elderly, on condition that you carry on honouring him and visiting him, and meeting his physical and emotional needs as much as you can. You should note that Allaah has enjoined honouring parents, especially when they reach old age, because of their great need at that time. Allaah has forbidden mistreating parents in word or deed, even by saying “Uff” (a mild expression of displeasure). Allaah says (interpretation of the meaning): “And your Lord has decreed that you worship none but Him. And that you be dutiful to your parents. If one of them or both of them attain old age in your life, say not to them a word of disrespect, nor shout at them but address them in terms of honour And lower unto them the wing of submission and humility through mercy, and say: ‘My Lord! Bestow on them Your Mercy as they did bring me up when I was young.’” [al-Isra’ 17:23] Shaykh ‘Abd al-Rahmaan al-Sa’di said: Then after mentioning His rights, Allaah mentions the rights of parents and says, “And that you be dutiful to your parents” i.e., you should treat them kindly in all ways, in word and deed, because they are the reason why a person exists and because they love their child and treat 9

Jurisprudence and Islamic Rulings

him kindly, which confirms that the child in turn is obliged to treat them kindly. “If one of them or both of them attain old age in your life” means, if they reach the age at which they grow weak and need kindness and good treatment, “say not to them a word of disrespect”: the word “uff” is the least kind of offensive speech, and what is meant is do not mistreat them in the slightest. “Nor shout at them” means, do not rebuke them or speak to them in a disrespectful manner. “But address them in terms of honour” means, in a polite, gentle and kind manner, which will soften their hearts and give them peace of mind. That varies according to circumstances, customs and times. “And lower unto them the wing of submission and humility through mercy” means, be humble towards them and compassionate, seeking reward thereby, not because you are afraid of them or hope for what they have and other motives for which a person will not be rewarded. “And say: ‘My Lord! Bestow on them Your Mercy” means: pray for Allaah’s mercy for them during their lifetime and after they have died, in return for their having brought you up when you were young. From this it may be understood that the more time spent in looking after their child, the greater their rights. Also, whoever takes care of raising a person and teaching him properly about his religious and worldly affairs instead of his parents has similar rights over the one whom he raised. Tafseer al-Sa’di, p. 407, 408 And Allaah knows best. Islam Q&A (www.islam-qa.com)

10

Transactions - Part 5

47040: Man divorcing his wife on his parents’ orders Question: What is the shar’i ruling on a man divorcing his wife when his parents tell him to, on the grounds that this wife used to work for them as a servant in the past? Is this regarded as disobeying one’s parents? Please note that this wife currently lives an honourable life. Answer: Praise be to Allaah. Undoubtedly the parents are those who are most deserving of respect, obedience and kind treatment. Allaah mentions the command to treat parents well alongside the command to worship Him as He says (interpretation of the meaning): “And your Lord has decreed that you worship none but Him. And that you be dutiful to your parents” [al-Isra’ 17:23] Obedience to parents is obligatory on the child with regard to that which will benefit them and will not harm the child. With regard to that which does not bring them any benefits or which will cause harm to the child, he does not have to obey them in that case. Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him) said in al-Ikhtiyaaraat (p. 114): A person is obliged to obey his parents with regard to that which is not sinful, even if they are immoral evildoers… This has to do with that which is beneficial for them and not harmful to him. End quote.

11

Jurisprudence and Islamic Rulings

Divorce with no acceptable reason is something that is hated by Allaah, because it destroys the blessings of marriage and exposes the family to destruction and the children to loss. It may also involve injustice towards the woman. The fact that the wife had been a servant in the past is not a legitimate reason for divorce, especially if she is religiously-committed and has a good attitude. Based on this, he does not have to obey his parents and divorce his wife, and that is not regarded as being disobedient towards them. But the son should express his refusal to divorce her in a kind and gentle manner, because Allaah says (interpretation of the meaning): “say not to them a word of disrespect, nor shout at them but address them in terms of honour [al-Isra’ 17:23] Shaykh Muhammad ibn Saalih ibn ‘Uthaymeen (may Allaah have mercy on him) was asked about the ruling on a man divorcing his wife if his father tells him to do that. He said: If the father tells his son to divorce his wife, one of the following two scenarios must apply: 1 – Where the father gives a legitimate reason why he should divorce her and separate from her, such as saying, Divorce your wife because her behaviour is suspicious, such as she flirts with men or goes out to gatherings that are not decent and so on. In this case the son should agree and divorce her, because he is not telling her to divorce her on the basis of a whim, rather that is to protect his son’s honour from being besmirched, so he should divorce her. 2 – Where the father tells his son to divorce his wife because the son loves her, but the father feels jealous of 12

Transactions - Part 5

his son’s love for her and the mother is more jealous, because many mothers, when they see that their son loves his wife, feel very jealous, as if the son’s wife is a cowife and rival. We ask Allaah to keep us safe and sound. In this case the son does not have to divorce his wife if his father or mother tells her to divorce her. Rather he should be tactful with them and keep his wife, and he should try to convince them with kind words until they are persuaded that she should stay with him, especially if the wife is religiously committed and has a good attitude. Imam Ahmad (may Allaah have mercy on him) was asked about this very issue. A man came and said: “My father is telling me to divorce my wife.” Imam Ahmad said to him: “Do not divorce her.” He said: “Didn’t the Prophet (peace and blessings of Allaah be upon him) tell Ibn ‘Umar to divorce his wife when ‘Umar told him to do that?” He said: “Is your father like ‘Umar?” If the father quotes evidence to his son and says, “O my son, the Prophet (peace and blessings of Allaah be upon him) told ‘Abd-Allaah ibn ‘Umar to divorce his wife when his father ‘Umar told him to do that,” the response to that is: “Are you like ‘Umar?” But you should speak kindly and gently, and say that ‘Umar saw something which indicated that it was in his son’s interests to divorce his wife. This is the answer to this question which comes up frequently. Al-Fataawa al-Jaami’ah li’l-Mar’ah al-Muslimah, 2/671. The Standing Committee for Issuing Fatwas was asked about a mother telling her son to divorce his wife for no reason or fault in her religious commitment, rather it was because of the mother’s personal reasons. They replied as follows: If the situation is as described, that his wife is righteous 13

Jurisprudence and Islamic Rulings

and he loves her, and she is dear to him, and she does not behave badly towards his mother, and his mother only dislikes her for personal reasons, then he should keep his wife and stay married to her. He does not have to divorce her in obedience to his mother, because it was proven that the Prophet (peace and blessings of Allaah be upon him) said: “Obedience is only with regard to that which is right and proper.” Based on this, he should honour his mother and uphold ties of kinship with her by visiting her and spending on her, and paying attention to her needs and making her happy and pleasing her in whatever ways he can, apart from divorcing his wife. Fataawa al-Lajnah al-Daa’imah, 2/29. Islam Q&A (www.islam-qa.com) 36761: Ruling on divorce via e-mail Question: First divorce communicated through email to te wife ,father,and uncle whether valid or a signed document necessary? whether the other two remaining divorces can be obtained immediately?. Answer: Praise be to Allaah. Firstly: It is well known in sharee’ah that divorce takes place when the words are uttered, written or indicated by a gesture that takes the place of speaking. See question No. 20660. This is something that is between the husband and his 14

Transactions - Part 5

Lord if no one hears him say that. With the regard to divorce via e-mail there is no problem regarding the fact that it is valid: if the husband writes that he is divorcing his wife then the divorce takes place by virtue of that writing. But the issue here is whether this divorce can be proven and authenticated (in court). It seems that the husband’s divorce of his wife via e-mail is effective if it is proven definitively that the one who sent the e-mail containing the words of divorce is the husband or someone whom the husband appointed to issue the divorce, and he acknowledges that and does not deny it. But if that cannot be proven and the husband does not acknowledge it, then this e-mail message is not valid and divorce does not take place in this case, because it is well known to those who work in this field that it is possible to hack into e-mail accounts and send messages. So we cannot be absolutely certain that the one who sent it is the husband. So proof and confirmation must be sought from the husband, and the the divorce should not be regarded as having taken place until after it has been confirmed by the husband. If he confirms it then the ‘iddah begins from the time when he uttered or wrote the words of divorce. Secondly: The two remaining divorces (talaaq) cannot take place immediately, for divorce takes place one at a time. Allaah says (interpretation of the meaning): “The divorce is twice” [al-Baqarah 2:229] This refers to the revocable divorce (i.e., first or second 15

Jurisprudence and Islamic Rulings

talaaq). Allaah did not say “two divorces” – which indicates that it can only happen one at a time, followed by the ‘iddah in each case. If the first divorce is valid as is counted as such, then we have to wait out the ‘iddah. If he takes you back during the ‘iddah, then this divorce counts as one of the three divorces, and he has to bring witnesses to attest to that. If he does not take you back during the ‘iddah, then you are divorced as soon as the ‘iddah is over, and it is not permissible for him to take you back without a new marriage contract and a new mahr, and he is regarded as a stranger to you like any other man who may propose marriage, and the marriage can only be done with your approval and the agreement of your guardian. The applies in the case of a second divorce; if he takes you back during (the ‘iddah) then you are his wife. In the event of a third divorce, you become haraam for him until you have married another husband in a legitimate shar’i marriage which is not done solely with the intention of enabling you to remarry your first husband, and which is consummated in the proper manner. If it so happens that you get divorced from your second husband then it becomes permissible for you to remarry your first husband after the ‘iddah ends. And Allaah knows best. Islam Q&A (www.islam-qa.com) 13253: Married to a Christian woman – what should he do next? Question: I’m muslem by birth. Except fasting during Ramadan, I 16

Transactions - Part 5

haven’t been practicing much else of Islam til about 3 years ago. I married a christian (non practicing) american women about 5 years ago but I’ve known her for 5 more years before that. I’ve been hoping that she’ll see the light and convert to islam but it didn’t happen. We talked about it and she said that converting to islam is out of the question. She’s a very nice person from a very nice family and she helped me a lot since I moved to the USA. She wants to have kids soon (so do I), but it will kill me to see my kids grow up other then muslems. Even though she agrees that the children will grow up as muslems. She said she will teach them Islam and would not confuse them by teaching them any other religion. She doesn’t know much about islam and she said she’ll start learning as soon as she gets pregnant. I’m very scared and depressed about this. I tried ending up the marriage 3 times but every time she cried til my heart softened and agreed to give it one more try. I’m running out of time and I don’t think I can go on with having children with her. She’ll resent it if we never have children and we’ll probably end up separated sooner ar later. Please advise me as to what to do. What are my responsibilities towards her if we should divorce?. Answer: Praise be to Allaah. Firstly: We advise you to adhere to Islam and adhere to its obligatory duties such as prayer, zakaah and fasting, and to be an example to your wife so that perhaps Allaah will guide her at your hands and you will achieve much good thereby. Secondly: 17

Jurisprudence and Islamic Rulings

Your anxieties and fears about your children growing up as non-Muslims – if they are born from this woman – reflects a commendable concern on your part for your religion and the religion of your children. Undoubtedly this good attitude is a good thing. In order to find peace of mind you need to make a great deal of du’aa’ and ask Allaah to protect your religious commitment and that of your children. You have to pray istikhaarah as prescribed in Islam, and ask Allaah to guide you and help you to make the right decision as far as your religious commitment is concerned, and choose whether to stay with her and have children with her, or to leave her and marry a committed Muslim woman with whom you will feel confident – by Allaah’s leave – about your children. Be certain that whoever gives up something for the sake of Allaah, Allaah will compensate him with something better than it, as is proven in the hadeeth of the Prophet (peace and blessings of Allaah be upon him). You can make the most of your wife’s being so attached to you to explain to her that if there is a conflict between your love for her and the soundness of your religious commitment, then the soundness of your religious commitment has to take priority. Perhaps this will motivate her to enter the true religion of Allaah – Islam. You should note that you cannot force her to enter Islam without conviction, because entering the religion of Islam by force will not benefit her, as Ibn Katheer mentioned (1/211). See also The effects of marriage to kitaabi women (i.e., Jewish and Christian women), question no. 20227. Thirdly: If your circumstances are conducive to your raising your children as Muslims and protecting them from religious and moral deviation, and your wife and her family will 18

Transactions - Part 5

not be able to influence them in those areas, then there is nothing wrong with trying to have children with your wife, even if she remains a Christian, because having children is also the wife’s right, and that may help her to learn about Islam and look into it as she has promised to do. Fourthly: You should try to move to a Muslim country where you will be able to give your children a sound upbringing, whether you stay with this wife or marry someone else, because staying in the kaafir lands is not permissible except in cases of necessity or where it serves the interests of the Muslims – such as staying there to call people to Allaah, or to study and acquire knowledge that the Muslims need but is not available in their countries – so long as one is able to practise Islam openly and call others to Islam, because the Prophet (peace and blessings of Allaah be upon him) said: “I disavow any Muslim who stays among the mushrikeen.” Narrated by Abu Dawood, 2645; classed as saheeh by al-Albaani in Saheeh Abi Dawood. For more information on this issue please see question no. 13363. Fifthly: In the event of a divorce, then the wife is entitled to the delayed mahr (dowry), if applicable. With regard to accommodation and maintenance, that depends on the type of divorce: If a man has given his wife one revocable talaaq (divorce), then she is entitled to accommodation and maintenance during the ‘iddah; she may also inherit from him and he from her (if either of them dies) during this period, because they are still married. The evidence that a woman divorced 19

Jurisprudence and Islamic Rulings

by a revocable talaaq is entitled to accommodation is the verse in which Allaah says (interpretation of the meaning): “O Prophet! When you divorce women, divorce them at their ‘Iddah (prescribed periods) and count (accurately) their ‘Iddah (periods). And fear Allaah your Lord (O Muslims). And turn them not out of their (husband’s) homes nor shall they (themselves) leave, except in case they are guilty of some open illegal sexual intercourse. And those are the set limits of Allaah. And whosoever transgresses the set limits of Allaah, then indeed he has wronged himself. You (the one who divorces his wife) know not it may be that Allaah will afterward bring some new thing to pass (i.e. to return her back to you if that was the first or second divorce)” [al-Talaaq 65:1] If she does not go back to him until after the ‘iddah has ended, then she can only go back to him with a new marriage contract. If a man divorces his wife with an irrevocable talaaq, then she is not entitled to accommodation and maintenance during the ‘iddah, unless she is pregnant. Irrevocable divorce is of two types: (i) The “lesser” type, which is divorce before the marriage has been consummated, and the divorce in return for some compensation or payment. (ii) The “greater” type, which is the third of three talaaqs. The evidence that a woman who has been divorced by an irrevocable talaaq is not entitled to maintenance or accommodation is the report narrated by Muslim (1480) from al-Sha’bi who said: I entered upon Faatimah bint Qays and asked her about the ruling of the Messenger of 20

Transactions - Part 5

Allaah (peace and blessings of Allaah be upon him). She said that her husband divorced her irrevocably and she referred the matter to the Messenger of Allaah (peace and blessings of Allaah be upon him) to judge with regard to accommodation and maintenance. She said: He did not grant me accommodation or maintenance, and he told me to observe my ‘iddah in the house of Ibn Umm Maktoom. According to another report also narrated by Muslim she said: I mentioned that to the Messenger of Allaah (peace and blessings of Allaah be upon him) and he said: “You are not entitled to any maintenance or accommodation.” According to a version narrated by Abu Dawood: “You are not entitled to any maintenance unless you are pregnant.” And Allaah knows best. Islam Q&A (www.islam-qa.com) 44923: His mother wants him to divorce his second wife so that no one else will follow his example and marry more than one wife Question: I am a lady who has been married for a short time because I am the second wife of a married man. His mother has asked him to divorce me, not because of any bad conduct on my part, but merely so that his sisters’ husbands will not follow his example. She says that she does not care if there is any sin on her because of this demand, what matters is not to go against custom by entering into a plural marriage. What is the Islamic point of view on this matter? Does my husband have to obey her in that, knowing that I live with him according to the way of Allaah?. 21

Jurisprudence and Islamic Rulings

Answer: Praise be to Allaah. The mother has no right to tell her son to divorce his wife just because he is going against his family’s or tribe’s custom by taking a second wife, or because she fears that her daughter’s husbands may follow his example, because plural marriage is something that has been permitted by Allaah and by His Messenger (peace and blessings of Allaah be upon him). The son does not have to obey his father or mother with regard to divorcing his wife, especially if that is for a reason that is contrary to the aims of sharee’ah, namely to have many children and keep Muslim women chaste and reduce immorality. It says in Mutaalib Oola’l-Nuha (5/320): A son is not obliged to obey his parents, even if they are of good character, with regard to divorcing his wife, because this is not part of honouring one’s parents. Shaykh al-Islam Ibn Taymiyah was asked about a married man who has children, but his mother dislikes his wife and tells him to divorce her. Is it permissible for him to divorce her? The answer was: It is not permissible for him to divorce her because of what his mother says, rather he should honour his mother, but divorcing his wife is not part of honouring his mother. And Allaah knows best. Al-Fataawa al-Kubra, 3/331 Your husband has to honour his mother and treat her kindly, whilst keeping you as his wife, because it is not part of honouring his mother to divorce his wife. This mother should be advised and reminded that it is essential to follow the laws of Islam, and to beware of 22

Transactions - Part 5

drawing nigh to sin. She should realize that whether her daughters will get divorced or not, or their husbands will take second wives or not, are matters of the unseen which no one knows except Allaah. Whatever He wills will happen, so there is no point in committing haraam actions and splitting up families. Our advise to you is to strive your hardest to treat your husband’s mother kindly and to win her love, so that your kind treatment of her will erase from her mind the idea of telling her son to divorce you. And Allaah knows best. Islam Q&A (www.islam-qa.com) 36548: What is the relationship of a woman to the man who has divorced her? Question: Is it permissible for me to go out with my ex-husband in the company of our children on occasion, so that they can be together with both parents like other children. That is done is public places. Also, he does not pray – is the money that he spends on them haraam?. Answer: Praise be to Allaah. If a man has issued the last of three talaaqs (divorces), or he has divorced her once or twice and her ‘iddah has ended, then she becomes a stranger (non-mahram) to him, and it is not permissible for her to be alone with him or to touch her or to look at her. 23

Jurisprudence and Islamic Rulings

The relationship of an ex-husband with his ex-wife is like his relationship with any other non-mahram woman. The fact that they have children does not justify his looking at her, being alone with her or travelling with her. He can go out with his children without her being there, or she can be present with one of her mahrams, without doing any of the haraam things that we have mentioned. Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him) said: A thrice-divorced woman is a stranger (non-mahram) to the man like any other non-mahram woman, so the man does not have the right to be alone with her, just as he does not have the right to be alone with any non-mahram woman. And he cannot see of her what he cannot see of any non-mahram woman, and there are no special rulings concerning the relationship between them (other than the rulings governing all interactions between non-mahrams). Al-Fataawa al-Kubra, 3/349. With regard to accepting what the divorced husband spends on his children, there is no reason not to do so, even if he does not pray. She should remind her children of the importance of advising their father to pray, and may Allaah guide him through this advice. If the mother fears that her children may be adversely affected by their kaafir father or that he may lead them to do something that Allaah has forbidden, it is not permissible for her to allow them to go out with him, because their going out with him is causing them harm. And Allaah knows best. Islam Q&A (www.islam-qa.com) 24

Transactions - Part 5

23269: Does touching with desire count as taking back a divorced wife? Question: For about 2 years now my husband and I have been having extreme marry difficulties, the problems have gotten soo bad that it has ended up in 2 divorces, the first divorce he took me back (having intercourse with me), the second divorce he just touched me (without having intercourse),but the touch was in a romatic way. He claims that I am still divorced, because he says that he has to have actual intercourse with me, I have passed one period, so he says that I have 2 more left and my iddah is over, is he right? or did he take me back even though he did not have intercourse with me he just touched me?. Answer: Praise be to Allaah. Firstly: Taking back the wife during the ‘iddah period is a right which sharee’ah gives to the husband. If he wants, he may take her back and if he wants, he may leave his wife until the ‘iddah period is over. Allaah says (interpretation of the meaning): “And their husbands have the better right to take them back in that period, if they wish for reconciliation” [al-Baqarah 2:228] So Allaah has given the husbands of divorced women the right to take them back during this period [i.e., the ‘iddah] if they intend reconciliation thereby. 25

Jurisprudence and Islamic Rulings

This taking back may be achieved in two ways: by word or by deed. Taking the wife back by word means saying, for example, “I take back my wife” or “I am keeping my wife,” etc., or saying to her: “I take you back,” or “I am keeping you,” etc. Taking back is achieved by means of these phrases, according to the consensus of the fuqaha’. Writing may take the place of speaking, and a gesture may take its place on the part of one who is unable to speak these words, such as one who is mute. Taking the wife back by deed means intercourse, so long as that is with the intention of reconciliation. Shaykh ‘Abd al-Rahmaan al-Sa’di said: If the husband had divorced her with a revocable talaaq, then if the ‘iddah is over she is not permissible for him unless a new marriage contract is done, fulfilling all necessary conditions. If the ‘iddah is not yet over, and if the intention behind intercourse is reconciliation, then this is taking her back and intercourse is permissible. If there is no intention of reconciliation then according to the madhhab this means that he has taken her back, but according to the correct view this does not mean that he has taken her back, therefore intercourse is haraam. Al-Irshaad ila Ma’rifat al-Ahkaam. Based on this, then your husband’s merely touching you is not regarded as him taking you back. See also the answer to question no. 11798. This is the view of the majority of scholars (including Imam Maalik, al-Shaafa’i and Ahmad), that taking back 26

Transactions - Part 5

the wife is not achieved by merely touching with desire. But Imam Maalik said: Taking back is achieved by touching with desire if the intention is to take the wife back. So long as your husband says that he that he did not intend to take you back, then he did not take you back by doing that. See al-Mughni, 7/404; al-Mawsoo’ah al-Fiqhiyyah, 13/ 187. Secondly: With regard to the ‘iddah of a woman divorced by a revocable talaaq, it is three menstrual cycles for women who menstruate, so there are two cycles left for you as your husband said, then your ‘iddah will be over. If he took you back during this time then this divorce is counted as one of the three talaaqs, and he has to bring people to witness that he is taking you back. So he has one talaaq left, and if he does not take you back during the ‘iddah period then you are divorced from him, and it is not permissible for him to go back to you except with a new marriage contract and a new ‘iddah, and the marriage cannot be completed except with your consent and the agreement of your wali (guardian). And Allaah knows best. Islam Q&A (www.islam-qa.com) 34579: She wants a divorce but he does not want to divorce her Question: I have a sister who is married, but her husband has not consummated the marriage with her yet. Everything was 27

Jurisprudence and Islamic Rulings

fine until my sister suddenly said that she does not want to live with her husband because she no longer loves him. They have not lived together in their house as husband and wife. When her husband heard her say this he got very angry and refused to divorce her. My sister is insisting that she does not want to live with him and he is insisting that he will not divorce her. We have told her that she cannot get divorced without a legitimate shar’i reason and proof, but she says that he gets angry quickly, and discloses secrets. It should be noted that she has not yet lived with him in the same house. Her husband admits that and says that he will change. What is the shar’i solution to this difficult problem?. Answer: Praise be to Allaah. If the husband is giving his wife her rights as prescribed in sharee’ah, then it is haraam for her to ask him for a divorce, because the Prophet (peace and blessings of Allaah be upon him) said: “Any woman who asked for a divorce for no reason, the fragrance of Paradise is forbidden to her.” Narrated by al-Tirmidhi, 1187; Abu Dawood, 2226; Ibn Maajah, 2055; classed as saheeh by al-Albaani in Saheeh Abi Dawood). What is meant by the words “for no reason” is without any urgent situation which makes it hard for the marriage to continue. If the wife is being harmed and the situation is too difficult for her because of the husband’s falling short in giving her her rights, or his withholding her rights from her, or because of his bad treatment and other similar reasons, then she has the right to ask for divorce, and she may refer to the qaadi and tell him what is happening, and he 28

Transactions - Part 5

in turn can ask the husband to give her her rights or to divorce her. If she has found out that he has some bad characteristics, he should not hasten to ask for a divorce, rather she has to be kind to him and advise him in the way that is best, and help him to change his character for the better. He acknowledges the way he is and has promised to change. This is a positive step on the husband’s part and it is the first step in dealing with the problem. The wife should help her husband to do good. If every wife wanted a divorce when he was quick to get angry or transmitted some words that were spoken between him and his wife, or other mistakes, there would be no household that was not broken up and its members scattered. For more information see the answers to questions no 3758 and 12496. And Allaah knows best. Islam Q&A (www.islam-qa.com) 31778: It is not a condition of divorce that the wife should know or that she should be divorced face-to-face Question: I have been divorced for three years now. the proceedings were done through a solicitor. my ex husband did not contest therefore it was done through agreement between us. what i would like to know he has never verbally said ‘talaq’ to me. i have asked a few people, they tell me that under the islamic law i am divorced, and some people tell me that he has to say it verbally. please clarify this for me, as it is affecting me. i initiated the divorce on grounds of violent behaviour. 29

Jurisprudence and Islamic Rulings

Answer: Praise be to Allaah. It is not a condition of divorce that the husband should speak the word in front of his wife or that she should know of it. When the man speaks the words of divorce, or writes them down, this is regarded as a valid divorce that takes effect, even if the wife does not know of it. If your husband has completed divorce proceedings with a lawyer then this divorce is valid and effective. Please see questions 9593 and 20660. Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him) was asked: A man has been away from his wife for a long time, and he had divorced her to himself, even though he did not inform her of that. Has divorce taken place? He replied: The divorce has taken place, even if he did not convey that to his wife. If a man utters the words of divorce and says, “I divorce my wife”, the wife is divorced whether she knows it or not. Hence if we assume that the wife does not come to know of this divorce until after she has had three menstrual cycles, then her ‘iddah is complete even if she did not know. Similarly if a man dies and his wife does not come to know of his death until after the end of the ‘iddah period, then she does not have to observe ‘iddah because in this case it is already over. Fataawa Ibn ‘Uthaymeen, 2/804. Islam Q&A (www.islam-qa.com)

30

Transactions - Part 5

11435: He divorced his fourth wife and wants to marry another; should he wait until her ‘iddah ends? Question: If a man divorces his fourth wife and wants to marry another woman, does he have to wait until the ‘iddah of the divorced woman ends?. Answer: Praise be to Allaah. It is haraam for the man who has divorced his fourth wife to marry another until the ‘iddah of the divorced woman has ended. And Allaah is the Source of strength. Fataawa al-Lajnah al-Da’imah, 18/11 (www.islamqa.com) 22850: He said to his wife, “I don’t want a woman who is like this.” Is this regarded as a divorce (talaaq)? Question: A man was arguing with his wife and blaming her for her attitude, and said that she was acting like a man in her dealings with him. He said to her, “If you carry on being like this it is difficult to live together. I do not want a girl who is like this.” We asked him about his intention when he said these words and he said that he did not know what his intention was at that moment.

31

Jurisprudence and Islamic Rulings

Answer: Praise be to Allaah. The scholars regard these words as words that are hinting at divorce. The ruling is that divorce does not take place unless that was his intention. If he did not intend to divorce her or he does not know what his intention was at the time when he spoke these words, then divorce does not take place. Shaykh Ibn Baaz (may Allaah have mercy on him) was asked about a man who said to his wife, “I don’t want you” a number of times. He said: These words do not constitute divorce if that was not his intention. This is a hint but is not divorce. His wife is still his wife, and he does not have to do anything. Fataawa al-Talaaq by Shaykh Ibn Baaz, p. 68. Islam Q&A (www.islam-qa.com) 20660: He intended divorce but he did not speak the words out loud. Did divorce take place? Question: If someone announces the intention to divorce his wife to anothe male. Does the divorce goes into effect? He did not pronounce it definitively he only said it that he would or intended to. But He did not is the marriage still valid. Answer: Praise be to Allaah. 32

Transactions - Part 5

This divorce has not taken place, so long as the husband did not utter the words of divorce, because intention on its own is not enough for divorce to take place. This is the view of the majority of scholars, as mentioned by al-Haafiz in al-Fath (9/394), and as quoted by Ibn Qudaamah in al-Mughni (7/121) from the majority of scholars. They quoted as evidence for that the hadeeth narrated by al-Bukhaari (2528) and Muslim (327) from Abu Hurayrah (may Allaah be pleased with him) who said: The Messenger of Allaah (peace and blessings of Allaah be upon him) said: “Allaah has forgiven my ummah for whatever crosses their minds, so long as they do not act upon it or speak of it.” Qutaadah – one of the narrators of this hadeeth – said: If it said the words of divorce to himself, without uttering it, it does not mean anything. Shaykh Ibn Baaz said: If there is merely the intention of divorce, that does not mean that divorce has taken place. Rather divorce takes place when the words are spoken or written. He quoted as evidence the hadeeth mentioned above. Fataawa Islamiyyah, 3/279. And Allaah knows best. Islam Q&A (www.islam-qa.com) 39941: He swore to divorce her if she visited her family, and now he has recanted. Does he have to offer kafaarat yameen? Question: My husband swore to divorce me if I visited my family. 33

Jurisprudence and Islamic Rulings

Now he has recanted. Does he have to offer kafaarat yameen (expiation for breaking a vow)?. Answer: Praise be to Allaah. Firstly: It is prescribed for the Muslim not to use divorce in arguments between him and his wife. That is because of the bad consequences that result from divorce. Many men take the matter of divorce lightly and every time they have an argument with their wives they swear to divorce them, and every time they have a dispute with their friends they swear to divorce their wives, and so on. This is a kind of playing with the word of Allaah, so how about the one who takes divorce as his habit, so that every time he wants to stop his wife doing something or make her do something, he swears to divorce her! Al-Nasaa’i (3401) narrated that Mahmoud ibn Labeed said: The Messenger of Allaah (peace and blessings of Allaah be upon him) was told about a man who had divorced his wife three times in one sitting. He stood up angrily and said, “Is he playing with the Book of Allaah whilst I am still among you?” Then a man stood up and said, “O Messenger of Allaah, shall I not kill him?” AlHaafiz said: the men of its isnaad are trustworthy. This was classed as saheeh by al-Albaani in Ghaayat alMaraam, 261. Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him) said: Those foolish men who utter words of divorce for every matter, minor or major, are going against the teaching of the Prophet (peace and blessings of Allaah be upon him) 34

Transactions - Part 5

who said: “Whoever swears (an oath), let him swear by Allaah or else remain silent.” Narrated by al-Bukhaari, 2679. So if a believer wants to swear an oath, let him swear by Allaah. Moreover we should not make a lot of oaths, because Allaah says (interpretation of the meaning): “And protect your oaths (i.e. do not swear much)” [al-Maa’idah 5:89] The commentaries on this verse may be summed up as saying that what it means is: do not swear a great deal by Allaah. But swearing to divorce one’s wife, such as saying, “My wife is divorced if she does such and such,” or “My wife is divorced if she does not do such and such,” or “if I do such and such then my wife is divorced,” or “If you do not do such and such then my wife is divorced,” and so on, is contrary to the teachings of the Prophet (peace and blessings of Allaah be upon him). Fataawa al-Mar’ah al-Muslimah, 2/753. Secondly: As to whether or not divorce takes place as a result of that, the reference point here is the husband’s intention. If he intended to divorce her, then the divorce takes place if his wife does the thing that he swore she should not do. If he did not intend to divorce her, rather he only intended to stop her doing something, then the ruling in this case is the ruling on vows. Shaykh Ibn ‘Uthaymeen said: The most correct view is that if divorce is used as a vow, in the sense that the intention behind it is to urge someone 35

Jurisprudence and Islamic Rulings

to do something, or to stop them from doing something, or to prove that someone is telling the truth or lying, or to confirm something, then it comes under the rulings on vows, because Allaah says (interpretation of the meaning): “O Prophet! Why do you forbid (for yourself) that which Allaah has allowed to you, seeking to please your wives? And Allaah is OftForgiving, Most Merciful. Allaah has already ordained for you (O men) the absolution from your oaths” [al-Tahreem 66:1-2] So Allaah has made forbidding something to oneself a vow or oath. And the Prophet (peace and blessings of Allaah be upon him) said: “Actions are but by intentions, and every man will have but that which he intended.” Al-Bukhaari, 1. This man did not intend to divorce, rather he intended to swear an oath, or something of that nature. So if he breaks his vow, then it is sufficient for him to offer kafaarat yameen. This is the more correct view. Fataawa al-Mar’ah al-Muslimah, 2/754 The Standing Committee was asked about a man who said to his wife, “You will be divorced if you do not come with me,” and she did not go with him. Does this mean that they are divorced? They replied: If you did not intend that divorce should take place, rather you meant to urge her to go with you, then divorce has not taken place. But you have to offer kafaarat yameen, 36

Transactions - Part 5

according to the more sound of the two scholarly opinions. If you did intend that divorce should take place and she did not do as you said, then she has been divorced once. Fataawa al-Lajnah al-Daa’imah, 20/86. And Allaah knows best. Islam Q&A (www.islam-qa.com) 34164: He thought of divorcing his wife Question: I had an argument with my wife about doing the laundry. I want her to wash the clothes and she does not want to do it. After a lot of arguing and shouting I went to a different room and thought of telling her, “You will be divorced if you wash them this month, I will wash them myself.” But I did not tell her what I had said to myself, and I did not say it in a loud voice. I could hardly hear myself saying it. I did that to stop the argument about the laundry, because she is very argumentative and I did not mean to divorce her, only to scare her. All of that happened to me in a moment of anger. If she does the laundry will that mean she is divorced or is it just a vow (yameen)?. Answer: Praise be to Allaah. Divorce does not happen just because you said that to yourself or you thought about it, or decided to do it but did not utter the words. That is because the Prophet (peace and blessings of Allaah 37

Jurisprudence and Islamic Rulings

be upon him) said: “Allaah will forgive my ummah for whatever crosses their minds and whatever they think of, so long as they do not act upon it or speak it out loud.” Narrated by al-Bukhaari, 6664; Muslim, 127. Ibn Qudaamah said: What that means is that divorce can only take place if the words are spoken out loud. If a man intends that in his heart but does not utter the words, then divorce does not take place, according to the majority of scholars, including ‘Ata’, Jaabir ibn Zayd, Sa’eed ibn Jubayr, Yahya ibn Abi Katheer, al-Shaafa’i, and Ishaaq. This was also narrated from al-Qaasim, Saalim, al-Hasan and al-Shu’bi. Al-Mughni, 7/294. From your words, “I did not say it in a loud voice. I could hardly hear myself saying it” we understand that you did utter these words, but in a soft voice. If that is the case, then what you said is regarded as meaning that you did divorce her, subject to the condition, which is that she washes the clothes. But you said that you did not intend to divorce her, only to scare her. Based on this, the ruling on this divorce is that of a vow (yameen): if she washes your clothes then you have to offer kafaarat yameen (expiation for breaking a vow), and that is not a divorce, as mentioned in the fatwa by Shaykh Ibn Baaz and Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on them). See Fataawa Islamiyyah, 3/280-285. Kafaarat yameen is mentioned in the verse in which Allaah says (interpretation of the meaning): “Allaah will not punish you for what is unintentional in your oaths, but He will punish you for your deliberate oaths; for its expiation (a deliberate oath) feed ten Masaakeen (poor persons), on a scale of the average of that with which you feed your own families, or clothe 38

Transactions - Part 5

them or manumit a slave. But whosoever cannot afford (that), then he should fast for three days. That is the expiation for the oaths when you have sworn” [al-Maa’idah 5:89] See also question no. 9985. All of this is based on the assumption that you spoke these words out loud, and that you were not just thinking of the matter. It is better and more on the safe side if you offer kafaarat yameen. To sum up the answer: If you did not actually utter the words of divorce, and you did not move your tongue, then you do not have to do anything. But if you uttered these words, even in a low voice, this comes under the ruling of a vow (yameen), because you meant to stop her washing your clothes, not to divorce her. Whether your wife knows what happened or not, that does not alter the ruling at all. The Muslim should avoid the matter of divorce, whether in thinking, determining to do it or speaking the words out loud, because that exposes the Muslim family to destruction for trivial reasons. We ask Allaah to set the Muslims’ affairs straight. And Allaah knows best. Islam Q&A (www.islam-qa.com)

39

Jurisprudence and Islamic Rulings

34571: Divorcing a wife because of her bad attitude Question: My brother-in-law had a miserable married life for last two years. his wife used to behave badly with him and the worst thing the girl used to torture /abuse her motherin-law . After many tormenting and disgusting discussions the boy,his mother, his father and his sister decided divorce is the only solution and he divorced. Please clarify whether the stance taken was right or not? . Answer: Praise be to Allaah. The basic principle concerning divorce is that it is makrooh. This is indicated by the words of Allaah (interpretation of the meaning): “Those who take an oath not to have sexual relation with their wives must wait for four months, then if they return (change their idea in this period), verily, Allaah is OftForgiving, Most Merciful. 227. And if they decide upon divorce, then Allaah is AllHearer, All-Knower” [al-Baqarah 2:226] With regard to the oath not to have sexual relations, Allaah says “Oft-Forgiving, Most Merciful”, but with regard to divorce, He says, “All-Hearer, All-Knower”. This contains an element of warning, and this indicates that divorce is makrooh or disliked by Allaah. But there may be some situations in which there is no 40

Transactions - Part 5

alternative to divorce, and matters may reach a point where divorce becomes essential. In a situation such as that mentioned in the question, divorce is an appropriate solution, because one of the rights that a husband has over his wife is that she should respect his family, especially the husband’s mother. The mother’s rights over a man come before his wife’s rights, so the wife should help her husband to honour his mother. The scholars (may Allaah have mercy on them) have stated that divorce is permissible in cases where it is needed because of the wife’s bad attitude and bad conduct and because she is causing too much harm and not doing what she is supposed to do. Al-Mughni, 10/324 And Allaah knows best. Islam Q&A (www.islam-qa.com) 26247: Khula’: definition and how it is done Question: What is khula and what is the correct procedure? If the husband does not want to divorce the wife, can the divorce still happen? What about in societies like America, where women who don’t like their husbands (in some case, because the husbands are religious). The women think that they have the freedom that if they don’t like the men, they can divorce them. Answer: Praise be to Allaah. 41

Jurisprudence and Islamic Rulings

Khula’ means the separation of the wife in return for a payment; the husband takes the payment and lets his wife go, whether this payment is the mahr which he gave to her, or more or less than that. The basic principle concerning this is the verse in which Allaah says (interpretation of the meaning): “And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal-money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allaah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allaah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul‘ (divorce)” [al-Baqarah 2:229] The evidence for that from the Sunnah is that the wife of Thaabit ibn Qays ibn Shammaas (may Allaah be pleased with him) came to the Prophet (peace and blessings of Allaah be upon him) and said, “O Messenger of Allaah, I do not find any fault with Thaabit ibn Qays in his character or his religious commitment, but I do not want to commit any act of kufr after becoming a Muslim.” The Prophet (peace and blessings of Allaah be upon him) said to her, “Will you give back his garden?” Because he had given her a garden as her mahr. She said, “Yes.” The Prophet (peace and blessings of Allaah be upon him) said to Thaabit: “Take back your garden, and divorce her.” (Narrated by al-Bukhaari, 5273). From this case the scholars understood that if a woman cannot stay with her husband, then the judge should ask him to divorce her by khula’; indeed he should order him to do so.

42

Transactions - Part 5

With regard to the way in which it is done, the husband should take his payment or they should agree upon it, then he should say to her “faaraqtuki” (I separate from you) or “khaala’tuki (I let you go), or other such words. Talaaq (i.e., divorce) is the right of the husband, and does not take place unless it is done by him, because the Prophet (peace and blessings of Allaah be upon him) said: “Talaaq is the right of the one who seizes the leg (i.e., consummates the marriage)” i.e., the husband. (Narrated by Ibn Maajah, 2081; classed as hasan by al-Albaani in Irwa’ al-Ghaleel, 2041). Hence the scholars said that whoever is forced to divorce his wife by talaaq wrongfully, and divorces her under pressure, then his divorce is not valid. See al-Mughni, 10/352. With regard to what you mention, that a woman in your country might arrange her own divorce through the manmade laws, if this is for a reason for which it is permissible to seek a divorce, such as disliking her husband, not being able to stay with him or disliking him because of his immoral ways and indulgence in haraam actions, etc., there is nothing wrong with her seeking divorce, but in this case she should divorce him by khula’ and return to him the mahr that he gave to her. But if she is seeking divorce for no reason, then that is not permissible and the court ruling on divorce in this case does not count for anything in terms of sharee’ah. The woman still remains the wife of the man. This gives rise to a new problem, which is that this woman is regarded as a divorcee in the eyes of the (man-made) law, and can re-marry after her ‘iddah ends, but in fact she is still a wife and not a divorcee. Shaykh Muhammad ibn Saalih al-‘Uthaymeen (may 43

Jurisprudence and Islamic Rulings

Allaah have mercy on him) was asked about a similar matter and said: Now we have a problem. The fact that she is still married to him means that she cannot marry anyone else, but according to the court ruling she is apparently divorced from him, and when her ‘iddah ends she can re-marry. I think that the only way out of this problem is that good and righteous people should get involved in this matter, to bring about reconciliation between the man and his wife. Otherwise she has to give him some payment, so that it will be a proper shar’i khula’. Liqa’ al-baab al-Maftooh by Shaykh Muhammad ibn ‘Uthaymeen, no. 54; 3/174. Islam Q&A (www.islam-qa.com) 26221: He said that his wife would be haraam to him if he took a second wife and now he wants to marry again Question: 1 – What is the ruling on a man who follows the Maaliki madhhab if he said that his wife would be haraam to him if he took a second wife, meaning to close the door to a second marriage more than to divorce his wife if he took a second wife? 2 – What is the ruling on a man who swears that he will divorce his wife if he commits zina (dultery), then he commits zina? 3 – If the divorce (talaaq) is valid in either case, is there any solution to enable him to keep his wife? Please note that his wife does not live with him in the same city, and 44

Transactions - Part 5

he does not want to divorce her, but he wants a way out that will allow him to marry another wife so that he will not fall into zina (adultery) again and commit sin and his wife become forbidden for him. Answer: Praise be to Allaah. Firstly: Divorce has not taken place in this case, but he must offer kafaarat yameen (expiation for breaking a vow) if he takes a second wife, because by swearing that oath he meant to stop himself (from marrying another woman), not to divorce his wife. Ibn ‘Uthaymeen, Fataawa Manaar al-Islam, 2/584. The questioner’s words, “meaning to close the door to a second marriage more than to divorce his wife if he took a second wife” appear to mean divorce and stopping himself at the same time, but the idea of stopping himself is stronger. The ruling does not change because the emphasis is more on stopping himself. Shaykh Khaalid al-Mushayqih Secondly: If what he intended when he swore the oath was divorce, then divorce has taken place. If he committed that sin, the divorce has indeed taken place. But if what he intended was to stop himself comitting this sin – which is usually the case when such words are spoken – then he must offer kafaarat al-yameen. Fataawa al-Talaaq by Shaykh Ibn Baaz, 1/141 45

Jurisprudence and Islamic Rulings

The Muslim should not play about with the word of divorce (talaaq), and swear to divorce his wife as a means of preventing himself from doing something, because many of the scholars think that divorce actually takes place in such cases, even if he did not intend that it should take place. Thirdly: Our advice to the questioner is that he should repent sincerely from the zina to which he has confessed, for this is one of the most repugnant of sins, which generates darkness in the heart and on the face of the one who does it. He must strive to follow the means that will prevent him from committing this sin. The scholars (may Allaah have mercy on them) have stated that marriage is obligatory if a man fears that he may fall into sin if he does not marry. Al-Mughni, 9/341 So you must strive to bring your wife to live with you in the same city, because this is a way of treating her in a kind manner. You should realize that she is suffering just as you are. You should not be concerned about protecting yourself from falling into sin, then leave your wife to suffer, for that is contrary to the kind treatment enjoined by Allaah and His Messenger. If you cannot manage to do that, then you should take a second wife, but that does not mean that your first wife will be divorced, as stated above; rather you will have to offer kafaarat yameen. Kafaarat yameen is mentioned in the aayah (interpretation of the meaning): “Allaah will not punish you for what is unintentional in your oaths, but He will punish you for your deliberate oaths; for its expiation (a deliberate oath) feed ten 46

Transactions - Part 5

Masaakeen (poor persons), on a scale of the average of that with which you feed your own families, or clothe them or manumit a slave. But whosoever cannot afford (that), then he should fast for three days. That is the expiation for the oaths when you have sworn” [al-Maa’idah 5:89] May Allaah send blessings and peace upon our Prophet Muhammad, and upon all his family and companions. Islam Q&A (www.islam-qa.com) 23463: Man writing romantic letters to his former wife Question: Is it halal or haram for a person to write or call former spouse in romantic way after that person is remarried and also is it approprieate to keep former spouse’s cards and pictures in the bedroom where newly married couple resides? Answer: Praise be to Allaah. Firstly: After a woman has been divorced and her ‘iddah is finished, she becomes a “stranger” (i.e., non-mahram) to her former husband, so it is not permissible for him to correspond with her or talk to her or shake hands with her or be alone with her. Such actions on his part or on hers pave the way for immorality, let alone being haraam in and of themselves. 47

Jurisprudence and Islamic Rulings

1 – Shaykh Muhammad Saalih ibn ‘Uthaymeen said: It is not permissible for any person to correspond with a woman who is not his mahram, because of the fitnah (temptation) involved in that. The person who is sending these letters may think that there is no fitnah involved, but the Shaytaan will keep at him until he tempts the man by means of the woman and vice versa. The Prophet (peace and blessings of Allaah be upon him) commanded those who hear the Dajjaal to keep away from him, and he said that a man may come to him as a believer, but the Dajjaal will keep at him until he tempts him and leads him astray. There is a great deal of temptation and danger in correspondence between young men and young women, so they must keep away from it, even though the questioner may say that there is no love involved. Fataawa al-Mar’ah al-Muslimah, 2/578 2 – Shaykh ‘Abd-Allaah al-Jibreen said, when he was asked about corresponding with a non-mahram woman: This action is not permissible, because it will provoke desire between them and will make them want to meet one another. This kind of correspondence often causes fitnah (temptation) and plants the seeds of zina in the heart, which leads to evil actions. So we advise those who are seeking that which is in their own best interests and who wish to protect themselves to avoid writing to or speaking with non-mahrams, etc., so as to protect their religious commitment and their honour, and Allaah is the Source of help. Fataawa al-Mar’ah al-Muslimah, 2/578, 579 Secondly: 48

Transactions - Part 5

It is not permissible for a husband or a wife to keep pictures of one another after the ‘iddah following talaaq has ended, because they have become strangers (i.e. nonmahrams) to one another and Allaah has forbidden them to look at one another. Allaah says (interpretation of the meaning): “Tell the believing men to lower their gaze (from looking at forbidden things), and protect their private parts (from illegal sexual acts). That is purer for them. Verily, Allaah is AllAware of what they do. And tell the believing women to lower their gaze (from looking at forbidden things), and protect their private parts (from illegal sexual acts)” [al-Noor 24:30-31] Moreover, for the husband to keep pictures of his former wife in the bedroom of his new wife is contrary to good treatment of the new wife, and it will generate jealousy and hatred towards the first wife, and rancour and hatred towards her husband. Hence it is not permissible for the husband to keep pictures of his former wife or to correspond with her. If the divorce is not the third and final talaaq, in which the husband is not permitted to take back his wife until after she has been married to another husband, and if the husband thinks that the reasons for the divorce no longer apply and that they can adhere to the limits set by Allaah and that each of them will be able to treat the other properly, then in such a case he can take her back with a new marriage contract so that she will be his wife again, especially if he has children from her whom he fears may be adversely affected by their parents’ separation. Marriage to another woman does not mean that he cannot 49

Jurisprudence and Islamic Rulings

re-marry the divorced wife if he thinks that he is able to take care of both. And Allaah knows best.Islam Q&A (www.islam-qa.com) 62839: Whispers from the Shaytaan and the remedy for them Question: Because I am suffering from waswasah (whispers from the Shaytaan), sometimes I do not answer my wife when she tries to speak to me, because of this waswasah or because I believe she is the cause of this waswasah. Does the fact that I do not answer her count as a talaaq (divorce)? If I speak to her angrily does that count as a talaaq? Answer: Praise be to Allaah. Not answering your wife does not count as a talaaq, neither does speaking to her angrily. No matter how much you may think of divorce, or intend and resolve to do it, talaaq (divorce) does not take place until and unless you utter the words of talaaq. That is because the Prophet (peace and blessings of Allaah be upon him) said: “Allaah has forgiven for my ummah that which is whispered to them and which crosses their minds, so long as they do not act upon it or speak of it.” (Narrated by al-Bukhaari, 6664; Muslim, 127) Based on this, according to the scholars if a man thinks of talaaq, that does not mean anything unless he speaks of it. 50

Transactions - Part 5

Indeed, according to some scholars, if a person is suffering from waswaas his talaaq does not count even if he utters it, so long as he did not have the intention of talaaq. Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him) said: “The talaaq of a person who is suffering from waswaas does not count even if he utters the words, if that was not done deliberately, because this utterance happened because of waswaas, not because of his will or intention. Rather it was forced upon him because of the strength of the waswaas and his lack of self-control. The Prophet (peace and blessings of Allaah be upon him) said, ‘There is no divorce under compulsion.’ So this divorce does not count, because he did not really want to do that. This was something that was forced upon him with no intention or choice on his part to do that, so this does not mean that talaaq has occurred.” (Fataawa Islamiyyah, compiled by Shaykh Muhammad ibn ‘Abd al-‘Azeez al-Musnad, 3/277) We advise you not to pay any attention to these whispers, and to ignore them, and to do the opposite of what they are calling you to do. For these whispers (waswaas) come from the Shaytaan to cause grief to those who believe. The best way to deal with them is to remember Allaah a great deal (dhikr), to seek refuge with Allaah from the accursed Shaytaan, to keep away from sins and wrong actions which are the means by which Iblees gains control over the sons of Adam. Allaah says (interpretation of the meaning): “Verily, he [the Shaytaan] has no power over those who believe and put their trust only in their Lord (Allaah)” [al-Nahl 16:99] It is worth quoting here what Ibn Hajar al-Haythami (may 51

Jurisprudence and Islamic Rulings

Allaah have mercy on him) said about dealing with waswasah in his book al-Fataawa al-Fiqhiyyah al-Kubra, 1/149. This is what he said: “He was asked about the problem of waswasah (insinuating whispers from the Shaytaan), and whether there is a remedy for it. He replied by saying that there is an effective remedy for it, which is to ignore them completely, no matter how frequently they may come to mind. When these whispers are ignored, they do not become established, rather they go away after a short time, as many people have experienced. But for those who pay attention to them and act upon them, they increase until they make him like one who is insane or even worse, as we see among many of those who have suffered from them and paid attention to them and to the devil whose task it is to insinuate these whispers, whom the Prophet (peace and blessings of Allaah be upon him) warned us against when he said, “Beware the whispers with regard to water (i.e., wudoo’) which is caused by a devil called al-Walhaan” – because that causes a person to go to extremes with regard to doing wudoo’, as was explained in Sharh Mishkaat al-Anwaar. In al-Saheehayn there is a report which supports what has been mentioned above, which is that whoever suffers from waswaas should seek refuge with Allaah and turn away from the waswaas. So think about this effective remedy which was taught by the one who does not speak of his own whims and desires to his ummah, and understand that whoever is deprived of this is deprived of all goodness, because waswasah comes from the Shaytaan, according to scholarly consensus, and the accursed one (the Shaytaan) has no other desire than to make the believers go astray, make them confused, make their life a misery, cause them distress to the extent that they leave Islam without realizing it. 52

Transactions - Part 5

“Surely, Shaytaan (Satan) is an enemy to you, so take (treat) him as an enemy” [Faatir 35:6 – interpretation of the meaning] According to another hadeeth, the one who suffers from waswasah should say, “Aamantu Billaahi wa bi rusulihi (I believe in Allaah and in His Messengers).” Undoubtedly, whoever thinks of the paths of the Messengers of Allaah, especially our Prophet (peace and blessings of Allaah be upon him) will find that his path and his law is easy and clear, with no hardship in it. “… and has not laid upon you in religion any hardship” [al-Hajj 22:78 – interpretation of the meaning] Whoever ponders this and believes in it sincerely, the problem of waswasah and listening to the Shaytaan will go away. In the book of Ibn al-Sunni it is narrated via ‘Aa’ishah (may Allaah be pleased with her), “Whoever suffers from this waswaas, let him say ‘Aamantu Billaahi wa bi rusulihi (I believe in Allaah and in His Messengers)’, three times, and it will go away from him.” Al-‘Izz ibn ‘Abd al-Salaam and others mentioned something similar to the above. They said: the treatment for waswasah is to believe that this is an idea from the Shaytaan and that Iblees is the one who is bringing these thoughts to his mind, and he should strive to fight him. Then he will have the reward of the mujaahid, because he is fighting the enemy of Allaah. If he does that, then the Shaytaan will flee from him. This is what mankind has been tested with from the beginning of time, and Allaah has given him (Iblees) some power over man as a test for him, so that Allaah may show the truth to be true and falsehood to be false, even though the disbelievers may hate that. 53

Jurisprudence and Islamic Rulings

In Muslim, hadeeth no. 2203, it is narrated that ‘Uthmaan ibn Abi’l-‘Aas said: “The Shaytaan was interfering with my prayer and recitation of Qur’aan. He [the Prophet (peace and blessings of Allaah be upon him) ] said: ‘That is a devil called Khanzab, so seek refuge with Allaah from him and spit drily to your left three times.’ I did that, and Allaah took him away from me.” This hadeeth proves the point we are making, which is that waswasah can only overpower the one who is ignorant and confused and does not know what’s what. But the one who has knowledge and understanding will the Sunnah and keep away from bid’ah. The worst of the innovators are those who follow waswaas, hence Maalik (may Allaah have mercy on him) narrated that his shaykh al-Rabee’ – who was the imam of the people of his time – was the fastest of the people in relieving himself and doing wudoo’. Ibn Hurmuz used to be slow in relieving himself and in doing wudoo’, and he used to say “I have a problem, do not follow my example.” Al-Nawawi (may Allaah have mercy on him) said that one of the scholars thought it was mustahabb for the one who was affected by waswasah with regard to his wudoo or prayer to say Laa ilaaha ill-Allaah, for when the Shaytaan hears dhikr (remembrance of Allaah) he slinks away, and Laa ilaaha ill-Allaah is the best of dhikr, and the most effective remedy for warding off waswasah is to remember Allaah a great deal. We ask Allaah to take away the waswasah that you are suffering and to increase us and you in faith, righteousness and piety. And Allaah knows best. Islam Q&A (www.islam-qa.com) 54

Transactions - Part 5

22680: He left the house and went away. Is this counted as a talaaq (divorce)? Question: A husband has left a wife on three occasions. In all these occasions, he simply walked out the door, no utterance of divorce. After about a month or so for two of these occasions, the wife received a letter stating the condition if he were to return, as well as stating that if these conditions weren’t met, he would divorce her. Are these two occasions classed as talaqs, also, are they 2 separate talaqs, noting that the wife did not realise that it was a talaq if it was intended. The third occasion was clearly a talaq. Furthermore, the husband is on some sort of heart medication which the wife feels has made him unstable in thought. She still wishes to be his wife and wants to care for him but according to the imaams, he has divorced her three time. She wishes for this to be resolved. Was she talaq-ed three times? Answer: Praise be to Allaah. A divorce does not happen simply by intention, because the Prophet (peace and blessings of Allaah be upon him) said: “Allaah has forgiven my ummah for what crosses their minds, so long as they do not act upon it or speak of it.” (Narrated by al-Bukhaari, 5269; Muslim, 127) Rather talaaq (divorce) happens in one of two ways: either by speaking or by writing. (Fataawa al-Talaaq by Ibn Baaz, 53-54) 55

Jurisprudence and Islamic Rulings

On this basis, talaaq did not take place on the first and second occasions, because the husband did not speak or write the words of talaaq . As for the third occasion, if he said, as stated in the question, “that he would divorce her if these conditions were not met”, this too is not counted as a talaaq, rather it is a threat of talaaq. Whether the conditions were met or not, this does not mean that a talaaq has taken place, because of threat of talaaq does not mean that a talaaq has actually taken place. (Fataawa al-Talaaq by Ibn Baaz, 56). And Allaah knows best. May Allaah send blessings and peace upon our Prophet Muhammad and upon all his family and companions. Islam Q&A (www.islam-qa.com) 26163: She does not get on with her husband; should she leave him and make her father angry? Question: I have been married for four years now, but dont get on with my husband at all. I have told him and my father many times that i find it hard to get on with him. Our marriage happened in Pakistan when i was going through a very bad time. My mother had been accused of adultery and was locked up in her Father-in-laws house. Me and my brother who were in Pakistan at the time were not allowed to talk to her or even see her. It was in those days that my father suggested that i get married. I had my Nikaah done then came to England. When my husband came over i tried to get on with him but found it very hard. I dont want to stay with him because i know that i wont be able to love and respect him like a wife should. I also dont want to hurt my father by getting a divorce. If i 56

Transactions - Part 5

do get a divorce will i be punished for hurting my father so much? Do you think it is right for me to get a divorce or carry on like this ‘’trying’’ to work it out but not getting anywhere? Answer: Praise be to Allaah. What we advise our sister to do is to try to avoid hurting her father’s feelings and also give her husband his right to love and obedience. If she is unable to give her husband his rights, and she does not feel any fondness for him, which makes her feel put off by him and makes her not want to obey him, then what she should do in this case is to free herself from him by means of khula’ and not ask him for a divorce (talaaq). There is a great difference between talaaq and khula’. Talaaq is done by the husband because he does not like his wife – for example – and not because of any reason on her part. Then the wife must observe the ‘iddah (waiting period) according to her situation. If she is pregnant, the ‘iddah lasts until she gives birth; if she is very young or is past the age of menopause, then she should wait for three months; if she is of child-bearing age then she should wait for three menstrual cycles. The husband has to give his wife the entire mahr and all her rights. Khula’ is initiated by the wife, and she gives him money to leave her. It is preferable for the husband not to ask for more than the mahr which he had given to her. Her ‘iddah lasts for one menstrual cycle, to establish that she is not pregnant.

57

Jurisprudence and Islamic Rulings

A similar case happened to some of the women of the Sahaabah as that which the sister is asking about. It was narrated that Ibn ‘Abbaas said: The wife of Thaabit ibn Qays came to the Messenger of Allaah (peace and blessings of Allaah be upon him) and said, “O Messenger of Allaah, I do not find any fault in Thaabit’s religious commitment or character, but I cannot bear to live with him.” The Messenger of Allaah (peace and blessings of Allaah be upon him) said: “Will you give him back his garden [that he had given as the mahr]?” She said, “Yes.” (Narrated by al-Bukhaari, 4972) According to another report (4971): “I do not find any fault in Thaabit’s religious commitment or character, but I would hate to fall into sin by rejecting the commands of Islam when I am a Muslim.” i.e., I am afraid that I may do something which would go against the rulings of Islam such as hating my husband, disobeying him, not giving him his rights, etc. See Fath al-Baari, 9/400 To sum up: you have to try to get along with your husband and give him his rights, and if you cannot then you have to free yourself from the marriage by means of khula’. You can ask for your father’s approval and explain to him that staying with your husband will adversely affect your religious commitment and your worldly interests. If he agrees, all well and good, but you do not have to stay with your husband when you do not like him and you cannot give him his rights. We ask Allaah to relieve you of your distress and to help you and give you a good life. Islam Q&A (www.islam-qa.com)

58

Transactions - Part 5

13803: Her husband beats her severely Question: I am a 22 year old Muslim born female in in America. I have been married to my husband. I married him because I thought that he was a good Muslim brother who cared about spreading ISlam and helping to raise the Kalimah of Allah -swt- by helping Muslims. I wanted to break off the marriage when we were still engaged about 4 years ago because he was saying mean things to me, hurting my feelings, and emotionally abusive. But he promised that after we got married he would be nice to me and that his harshness was the result of him having a bad job. Since Muslims are supposed to keep their promises, I believed and trusted him, and agreed to marry him. Since being married, he has gotten worse and has been physically abusive, even punching me and choking me. My parents finally found out about 8 months ago. I left him to my parents house at that time for a few weeks. They convinced me that i should give him another chance because any other man i would marry would probably be even worse. They say that all of the other divorced women end up with worse husbands and situations. He came back apologizing and promising to change his ways of saying hurtful things, being picky, and to stop the abuse. The agreemant was that I would go back to him to see if he really has changed. After going back to him, he only changed for a short while. He has been verbally and emotionally abusive. He has been physically abusive to a small degree. He has pushed me lightly and smacked me lightly. Since this is how his abuse started when we first got married from light to 59

Jurisprudence and Islamic Rulings

harder and harder, I decided a couple of months later that he has not changed and told my parents that. Answer: Praise be to Allaah. We ask Allaah to help you cope with the calamities that have befallen you, and to grant you the reward of those who are patient, for He is Most Generous, Most Kind. The husband should realize that he is a shepherd and is responsible for his flock. Allaah has enjoined upon him to treat them in a good and proper manner and to treat his family kindly. Our Prophet (peace and blessings of Allaah be upon him) said: “The best of you is the one who is best towards his wife, and I am the best of you towards my wives.” (Narrated by al-Tirmidhi, 3895; Ibn Maajah, 1977; classed as saheeh by Shaykh al-Albaani in Saheeh al-Jaami, 3314). Part of that good and kind treatment means not beating one’s wife in a severe manner and not insukting or cursing her. He should realize that this is a violation of the trust with which Allaah has entrusted him. We have heard that many people have a hard time finding a job by which they may earn their livelihood, and that it may take a long time to find a suitable job. We have heard that many of these people oppress their wives and beat them, as if they are the cause of what is happening to them. It is as if they use this situation to justify their abhorrent actions. These men have to fear Allaah and to realize that they are the ones who are most in need of obeying Allaah and keeping away from haraam things; they should not commit sins then justify that for themselves. The Muslim has to realize that he is in the world of trials 60

Transactions - Part 5

and tests, so he must adorn himself with patience in bearing all the things that happen to him in this life. He should turn to Allaah by praying to Him to relieve him of the disasters that have befallen him, for He is the One Who relieves worry and distress, and Who answers the prayer of the one who has been wronged, may He be glorified and praised. Nothing is hidden from Him and there is nothing that He is unable to do in the heavens or on earth, to Him be praise in the beginning and at the end. He is the most generous of those who are generous, and His slave does not seek to draw close to Him but He is even swifter in drawing close to His slave. Al-Bukhaari (6856) and Muslim (4832) narrated in their Saheehs that Abu Hurayrah (may Allaah be pleased with him) said: The Prophet (peace and blessings of Allaah be upon him) said: “Allaah says: ‘I am as My slave thinks I am. I am with him when he makes mention of Me. If he makes mention of Me to himself, I make mention of him to Myself; and if he makes mention of Me in an assembly, I make mention of him in an assembly better than it. And if he draws near to Me a hand’s span, I draw near to him an arm’s length; and if he draws near to Me an arm’s length, I draw near to him a fathom’s length. And if he comes to Me walking, I go to him at speed.’” In your case, my sister, Allaah is testing you by means of a man whose behaviour and attitude are bad. Based on what has been mentioned in the question, it is permissible for you to ask for a divorce (this is what is called khula’), because living with this man and anyone like him is something that is unbearable. Perhaps Allaah will compensate you with someone better than this man. If you cannot find another husband, then staying without a husband in your parents’ house, where you will be cared for and respected, will be better for you than staying with 61

Jurisprudence and Islamic Rulings

this man, so long as you do not fear that you will be tempted or will fall into haraam things. But if you fear that you may be tempted, then being patient and bearing worldly troubles by staying with this man will be better for you than having to bear the punishment of Allaah. The reasons for which it is permissible for a woman to seek divorce (khula’) from her husband are mentioned in Question 1859 on this site. And Allaah knows best. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 26810: He was told that his wife had revived a previous forbidden relationship so he divorced her Question: My friend got divorced in this Ramzan and his wife was(is) 5 months pregnant as well . The reason for divorce was that his wife had boy friends before marriage and someone said that after marriage also she would meet her ex boy friends . On this reason he divorced her and under the influence of his parents. Now what i want to know is was that a right path , did it have Allah’s Sanction to this deed ? what about the child who is in the womb ? What will happen to that baby and his/her future ? Answer: Praise be to Allaah.

62

Transactions - Part 5

What you have mentioned in the question covers a number of issues: 1 – What you have mentioned about your friend divorcing his wife during her pregnancy is valid according to the consensus of the scholars, because of the hadeeth of Ibn ‘Umar in al-Saheehayn, according to which the Prophet (peace and blessings of Allaah be upon him) said: “Tell him to take her back, then to divorce her when she is pure (not menstruating) or pregnant.” That indicates that whoever divorces (his wife when she is) pregnant, the divorce is valid. (Fataawa al-Talaaq by Ibn Baaz, 1/45). 2 – With regard to the reason that led him to divorce her, which is that person telling him that she had been meeting with her former boyfriend after marriage, we advise those who want to pass things on to make sure that any news is true before they pass it on, and that their intentions are good. Her husband too should have checked whether what he was told was true or not, and not divorce her on these grounds without verifying anything. Allaah says (interpretation of the meaning): “O you who believe! If a Faasiq (liar — evil person) comes to you with any news, verify it, lest you should harm people in ignorance, and afterwards you become regretful for what you have done” [al-Hujuraat 49:6] Hastening to divorce one’s wife without verifying anything and without giving oneself time to think it over is a rejection of the blessing of marriage for no valid reason and destroying the family which is a blessing that Allaah has bestowed upon the children of Adam, as Allaah says (interpretation of the meaning): “And among His Signs is this, that He created for you 63

Jurisprudence and Islamic Rulings

wives from among yourselves, that you may find repose in them, and He has put between you affection and mercy. Verily, in that are indeed signs for a people who reflect” [al-Room 30:21] If he finds out that something displeasing is true, then he may try to correct it through the means which he is permitted to use by virtue of his being in charge of his wife (qiwaamah), or he may separate from her, whilst also concealing her sin. 3 – If the wife had previous relationships, before marriage, then she got married and repented to Allaah, and broke off all forbidden relationships, then she should not be rebuked for what is in the past, because the one who has repented from a sin is like one who has never sinned. Allaah says (interpretation of the meaning): “And He it is Who accepts repentance from His slaves, and forgives sins” [al-Shoora 42:25] It is not permissible to expose her, to tell everyone about her or to call her to account for the past; rather he should cover up her past and her secrets; whoever conceals the faults of a Muslim, Allaah will cover his faults in this world and in the Hereafter. Such cases explain to us the wisdom of the sharee’ah in forbidding everything that may lead to an improper relationship between a man and a woman, such as looking at a non-mahram woman, shaking hands with her, being alone with her, and so on, whether that is before marriage or afterwards. 4 – With regard to the husband’s parents applying pressure on him to divorce her without any proof of the things of 64

Transactions - Part 5

which she had been accused, obedience to parents should only be with regard to that which is good and proper, things that Allaah and His Messenger (peace and blessings of Allaah be upon him) have permitted. The Prophet (peace and blessings of Allaah be upon him) said: “Obedience is only with regard to that which is good and proper.” (Narrated by al-Bukhaari, 7245; Muslim, 1840). His parents’ orders to hasten to divorce her with no proven sin on the wife’s part is not something which is good and proper. 5 – With regard to the foetus in her womb, the basic principle in sharee’ah is that that the child belongs to the (marriage-) bed and belongs to the husband, unless he disowns him, because of the hadeeth of the Prophet: ‘The child belongs to the (marriage-)bed and the adulterer is to be stoned.” (al-Bukhaari, 2053; Muslim, 1457). i.e., the child is to be attributed to the husband and no attention is to be paid to doubts and the like, especially in a case like this where the doubts are far-fetched. Islam encourages us to attribute children to their fathers, so this husband should not open the door to waswaas (whispers of the Shaytaan) with regard to his son who will be born to the wife he has divorced, because he has no evidence to the contrary. If this husband wants to go back to his wife after this divorce (talaaq), if she is still pregnant and he issued the talaaq once or twice, then she is still his wife according to sharee’ah, because her ‘iddah has not yet ended. Allaah says: “And for those who are pregnant (whether they are 65

Jurisprudence and Islamic Rulings

divorced or their husbands are dead), their ‘Iddah (prescribed period) is until they lay down their burden” [al-Talaaq 65:4] So he may take her back and ask two men to bear witness that he is taking her back; in this way she will become his wife again. But if she has already given birth and this was the first or second talaaq, then he may go back to her with a new contract, so long as it meets all the necessary conditions. And he should beware of such news and take care to protect his wife and keep her away from places which may give rise to suspicion. And Allaah knows best. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 14569: The ‘iddah of a woman divorced by khula’ and her going back to her husband Question: If a wife asks her husband for a khula and he accepts, how long is the waiting period?Is it irrevocable i.e can they ever re-marry? Answer: Praise be to Allaah. If the woman who has been divorced by khula’ is pregnant then her ‘iddah lasts until she gives birth, according to scholarly consensus. Al-Mughni, 11/227. But if she is not pregnant, the scholars differed concerning 66

Transactions - Part 5

her ‘iddah. Most of the scholars said that she should wait for three menstrual cycles, because of the general meaning of the aayah (interpretation of the meaning): “And divorced women shall wait (as regards their marriage) for three menstrual periods” [al-Baqarah 2:228] But the correct view is that it is sufficient for a woman divorced by khula’ to wait for one menstrual cycle, because the Prophet SAWS (peace and blessings of Allaah be upon him) told the wife of Thaabit ibn Qays, when she divorced him by khula’, to wait out the ‘iddah for one menstrual cycle. (Narrated by al-Tirmidhi, 1185; classed as saheeh by al-Albaani in Saheeh al-Tirmidhi, 946). This hadeeth refers specifically to khula’ divorce whereas the aayah quoted above speaks of divorce in general. But if she waits out an ‘iddah of three menstrual cycles that will be more complete and will be on the safe side, and will avoid an area of scholarly dispute, as some scholars say that she should wait for three menstrual cycles, based on the aayah quoted. Fataawa al-Talaaq by Shaykh Ibn Baaz, 1/286. There is nothing wrong with them remarrying with a new marriage contract. See question no. 10140. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 13243: Some causes of divorce Question: What are the causes of divorce in your opinion? 67

Jurisprudence and Islamic Rulings

Answer: Praise be to Allaah. There are many causes of divorce, such as lack of harmony between the spouses, such that one of them does not love the other, or neither of them loves the other; or a bad attitude on the wife’s part, or her failure to listen to and obey her husband with regard to things that are good and proper; or a bad attitude on the part of the husband and his mistreating her and being unfair to her; or inability on the part of either spouse to fulfil the rights of the other; or sin on the part of one or both of them, which may generate a bad atmosphere between them and eventually lead to divorce, such as use of intoxicants and tobacco on the part of either spouse; or a bad atmosphere between the wife and one or both parents of the husband; or a lack of wisdom in dealing with one another; or the wife’s failure to keep herself clean and make herself attractive to her husband by wearing nice clothes, smelling good, speaking nice words and greeting him with a smiling face when they meet. Fataawa al-Shaykh Ibn Baaz, in al-Fataawa al-Jaami’ah li’l-Mar’ah al-Muslimah, part 2, p. 666 (www.islamqa.com) 13254: Divorce from a husband who is addicted to smoking Question: My husband is addicted to smoking and he suffers from asthma. There have been many problems between us concerning his giving up smoking. Five months ago my husband prayed two rak’ahs to Allaah and swore that he would never smoke again, but he started smoking again 68

Transactions - Part 5

one week after making that vow, and the problems between us started again. I asked him for a divorce but he promised me that he would not start smoking again and that he would give it up forever, but I am not confident that he will be able to keep his word. What is your opinion, what is the expiation for his broken vow and what do you advise me to do? Answer: Praise be to Allaah. Smoking is one of the evil things that are forbidden, and it causes a great deal of harm. Allaah says in His Holy Book, in Soorat al-Maa’idah (interpretation of the meaning): “They ask you (O Muhammad) what is lawful for them (as food ). Say: ‘Lawful unto you are AtTayyibaat [all kinds of Halaal (lawfulgood) foods which Allaah has made lawful (meat of slaughtered eatable animals, milk products, fats, vegetables and fruits)]’” [al-Maa’idah 5:4] And He says in Soorat al-A’raaf, describing the Prophet Muhammad (peace and blessings of Allaah be upon him): “he allows them as lawful AtTayyibaat (i.e. all good and lawful as regards things, deeds, beliefs, persons and foods), and prohibits them as unlawful AlKhabaa’ith (i.e. all evil and unlawful as regards things, deeds, beliefs, persons and foods)” [al-A’raaf 5:157] Undoubtedly smoking is an evil and unlawful thing, so your husband must give it up and keep away from it, in obedience to Allaah and His Messenger (peace and blessings of Allaah be upon him) and so as to avoid that 69

Jurisprudence and Islamic Rulings

which incurs the wrath of Allaah, and to protect his religious commitment and health, and to maintain good relations with you. As expiation for his broken oath he must offer kafaarat yameen, as well as repenting to Allaah for starting to smoke again. This expiation means feeding or clothing ten poor persons, or freeing a believing slave; it is sufficient to give them dinner or lunch, or to give each of them half a saa’ of the staple food of the country Which is equivalent to a kilo and a half. We advise you not to ask him for a divorce if he prays and he is a man of good conduct, and if he gives up smoking. But if he persists in this sin there is nothing to prevent you from asking him for a divorce. Shaykh Ibn Baaz, al-Fataawa al-Jaami’ah li’l-Mar’ah alMuslimah, part 2, p (www.islam-qa.com) 22034: Divorce uttered in anger Question: I would like to ask you about an incident happened 4 days ago to my muslim brother. He said to his wife that, he is giving her three talak at once and sweared after that. But after couple of hours he regret for saying that, and also claiming he was angry at the moment he was talking to his wife. So sheikh my brother wants to know if is he allowed to go back to his wife because it is its first time to say that or is not allowed? according to islamic sheria. I would like some qoutations on your decision because I heard different views from people but with no evidence from the sharia. Answer: Praise be to Allaah. 70

Transactions - Part 5

Anger is of three types: 1 – when anger is so intense that are person is no longer aware of what he is doing or saying, and becomes like one who is insane or mad. In this case the talaaq (divorce) does not count, according to all the scholars, because he is like one who is insane and mad, who has lost all power of reason. 2 – when his anger is intense but he understands what he is saying and doing, but his anger is intense and he cannot control himself because the argument trading of insults or fighting has gone on too long, so his anger may be intense because of that. In this case there is a difference of opinion among the scholars, but the most correct view is that divorce does not count in this case either, because the Prophet (peace and blessings of Allaah be upon him) said: “There is no divorce and no freeing of slaves when it is done by force or in a state of intense anger.” (Narrated by Ibn Maajah, 2046; classed as saheeh by al-Albaani in al-Irwa’, 2047) 3 – mild anger, which is what happens when the husband is upset with his wife, or he is disappointed about something that his wife has done, but it is not so intense that it makes him lose his power of reasoning or selfcontrol. Rather it is the ordinary kind of anger and is mild. In this case the divorce is valid according to the all the scholars. This is the correct answer regarding divorce uttered in anger, as was stated by Ibn Taymiyah and Ibn al-Qayyim, may Allaah have mercy on them. And Allaah knows best. May Allaah send blessings and peace upon our Prophet Muhammad. 71

Jurisprudence and Islamic Rulings

Fataawa al-Talaaq by Shaykh Ibn Baaz, pp. 15-27 (www.islam-qa.com) 9593: Does signing a divorce paper count as divorce? Question: If a husband receives an official form from the court on which is written the words “I divorce my wife” and he signs it, is that counted as a divorce? Answer: Praise be to Allaah. Yes, this is a divorce if the name of the wife is written on the form. Shaykh Ibn Jibreen (www.islam-qa.com) 21592: Ruling on asking for a divorce from a husband who has some medical problems Question: My husband and i been married for the last 11 years and we could not have childrens due to my husband who had a medical problems whimhich he knew of but had hide it from me before we got married and had i knew than i woulden,t have got married to him and my question is. I want to divorce him and wanted to know what are my right? 72

Transactions - Part 5

Answer: Praise be to Allaah. If the problems to which you refer have to do with some defect in your husband that discourages intimacy between you, or prevents achievement of the purposes of marriage such as mercy and love, because he is not able to have intercourse or he suffers from a sickness which prevents him from being intimate, then the scholars count these things as faults in the marriage which entitle the wife to have the choice: in other words, you have the right to annul the marriage contract or to leave it as is, and he does not have the right to take any part of the mahr from you, because you gained the right to the mahr in return for the intimacy that he has had with you in past years. With regard to the man’s sterility, i.e., his inability to father children, this is not counted as a fault that would necessitate annulment of the marriage, according to the majority of scholars, apart from the view of al-Hasan alBasri, and Shaykh al-Islam Ibn Taymiyah was also inclined towards that view. The husband should have explained his situation to his wife, because the wife has the right to have children just as the husband does. For this reason a husband is not permitted to practise ‘azl (coitus interruptus) – which means ejaculating outside the vagina – without his wife’s consent. Ibn Qudaamah said, after listing the faults which give the wife the option of annulling the marriage contract, We do not know of any differing opinion among the scholars concerning this matter, except that al-Hasan said: If one finds that the other is sterile, there is the option of annulling the marriage. 73

Jurisprudence and Islamic Rulings

Ahmad preferred that (the husband) should state his situation and said: Perhaps his wife wants to have a child, and this should be clarified at the beginning of the marriage. As for annulment, there is no proof of that (in sharee’ah), otherwise it would apply in the case of women when they reach menopause, and such a ruling is not known. For a man may not have a child when he is young, then he may have a child when he is an old man, or they may not have children at all. With regard to other faults, according to the scholars it is not proven that they are grounds for annulment. (al-Mughni, 7/143) On this basis, if you do not want to put up with him, then either he should divorce you by talaaq according to sharee’ah, or you may free yourself from him by khula’, whereby you agree to give him a certain amount of money, or you return the mahr to him or whatever you agree upon, whatever will be a suitable recompense in return for khula’, then he should divorce you with a single talaaq. This talaaq will count as a revocable divorce, and he will not have the right to take you back during the ‘iddah or afterwards unless there is a new marriage contract that meets the appropriate conditions. The evidence that khula’ is permissible is the aayah (interpretation of the meaning): “The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness. And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal-money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allaah (e.g. to deal with each other on a fair basis). Then if you fear that they 74

Transactions - Part 5

would not be able to keep the limits ordained by Allaah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul‘ (divorce). These are the limits ordained by Allaah, so do not transgress them. And whoever transgresses the limits ordained by Allaah, then such are the Zaalimoon (wrongdoers)” [al-Baqarah 2:229] The evidence from the Sunnah is the hadeeth narrated by al-Bukhaari in his Saheeh (4867) from Ibn ‘Abbaas, in which it says that the wife of Thaabit ibn Qays came to the Messenger of Allaah (peace and blessings of Allaah be upon him) and said, “O Messenger of Allaah, I do not blame Thaabit ibn Qays for any defect in his character or his religious commitment, but I would hate to commit an act of kufr when I am a Muslim.” The Messenger of Allaah (peace and blessings of Allaah be upon him) said, “Will you give him back his garden [which he had given as mahr]?” She said, “Yes.” The Messenger of Allaah (peace and blessings of Allaah be upon him) said (to Thaabit), “Accept the garden, and divorce her once.” The scholars are agreed that khula’ is permissible if there is a shar’i reason for it. For more information on the reasons, please see question no. 1859. We must advise you that if your husband’s character and religious commitment are good, and there is no risk of you falling into haraam things if you remain married to him, then it is better for you to be patient and stay with your husband; perhaps Allaah will grant you from him sons and daughters who will be the apple of your eye. And Allaah knows best what is right. See al-Mughni by Ibn Qudaamah, 7/246; al-Mawsoo’ah al-Fiqhiyyah, 19/238, 240. 75

Jurisprudence and Islamic Rulings

Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 21413: A number of questions about divorce Question: I have three urgent and, I believe,very imporatant questions about Divorce (Talaq). 1. Is what is known in the west as SEPARATION permitted in Islam? A muslim husband and wife with children living in the west are seriously considering divorce. Somebody suggested trying Separation first. The husband would move out to a place nearby but since they are still married there would be no problem comming in the house at any time. He would still continue to support the family in every respect. 2. For consummated marriage and with first Talaq, when does Eddah end? Is it the end of the third period (bleeding) or the beginning of the fourth one? 3. What is permitted during Eddah that would not constitute end of Talaq? I know that sexual intercourse is not, but is kissing, touching and hugging ok? Answer: Praise be to Allaah. With regard to the first question, the answer depends on the circumstances. If what is intended by this action is to reduce the level of tension in the relationship, then they will come back together, or as a trial separation to see what effect that will have on them and their children so 76

Transactions - Part 5

that it will help them to take a decision, and they both agree to this temporary separation, then there is nothing wrong with that. If this is a decision that they have both taken, and have agreed to separate from one another without divorcing, then it should be said that if the woman foregoes the rights that she will lose through this separation, and he also foregoes his rights over her, and they think that this is in their best interests and those of their children, and the place where the woman and her children will stay is a safe place where they will not suffer neglect, then that is permissible, subject to these conditions. But if she wants intimacy and he does not want to do that, or there is the fear that she may do something wrong whilst she is still married to him, and the like, then he should divorce her, but still continue to spend on his children. And Allaah knows best. With regard to the second question: the ‘iddah of a divorced woman who has periods, with whom the marriage has been consummated and who is not pregnant, is a matter concerning which classical and contemporary scholars have differed. The view which is regarded as most correct by the majority of contemporary scholars, such as Shaykh Ibn Baaz and Ibn ‘Uthaymeen, and others, is that the ‘iddah ends when three menstrual periods have passed, and as soon as the third period ends, the ‘iddah ends. This is the view of many of the major Sahaabah such as ‘Umar ibn al-Khattaab, ‘Ali ibn Abi Taalib and Ibn Mas’ood, and it was narrated by Ibn al-Qayyim from Abu Bakr, Abu Moosa and others (may Allaah be pleased with them all). (See Fataawa Islamiyyah, 3/310; Fataawa al-Talaaq by Shaykh Ibn Baaz, 193; Jaami’ Ahkaam al-Nisa’, 4/243). With regard to the third question: “The women whose 77

Jurisprudence and Islamic Rulings

divorce is revocable (i.e., first or second talaaq) may uncover in front of her husband and adorn herself and wear make-up and perfume. She may speak to him and he may speak to her; she may sit with him and do anything with him apart from intercourse and the things that lead to it; that may only happen when he takes her back. (Shaykh Ibn ‘Uthaymeen, Fataawa Islamiyyah, 3/310) If he kisses and embraces his wife with the intention of taking her back, then that taking back is valid, with no difference of opinion among the scholars. But if he does not intend to take her back, then some scholars say that it is permissible on the grounds that she is his wife, but that it does not mean that he has taken her back; other scholars say that embracing and kissing etc. are precursors to intercourse, so the one who does them is sinning if he does not intend to take her back. To be on the safe side, he should not do that until after he has clearly stated that he is taking her back, such as saying to his wife, “I am taking you back,” and two Muslim witnesses bear witness to his taking her back by him saying in front of them, “I ask you to bear witness that I am taking my wife So and so back,” and the like. Then he may do whatever he likes of permissible things. And Allaah knows best. (See Subul al-Salaam, 2/267). Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 20002: Is it permissible to live with a husband who takes out a riba-based loan? Question: Is it sinful for a wife to live with a husband who takes out 78

Transactions - Part 5

loan to start a business? Can this be a ground for divorce? I would be grateful if you could advice me in how to convience him that it is wrong what he is doing. Answer: Praise be to Allaah. If the loan that he has asked for is halaal, i.e. it is not based on riba, and he intends to pay it back, then there is nothing wrong with this, and this is not regarded as a sinful loan. But if this loan is a riba-based loan, then it is haraam and it is not permissible for him to take it or to start a business with this haraam money. “And whosoever fears Allaah and keeps his duty to Him, He will make a way for him to get out (from every difficulty). And He will provide him from (sources) he never could imagine” [al-Talaaq 65:2-3] and : “Whoever gives up something for the sake of Allaah, Allaah will compensate him with something better than that.” If you want to advise him, then in Question no. 9054 you will find some comments on this topic which you can give him so that he might benefit from that, and avoid that which is haraam. With regard to his consuming riba, this may be grounds for you to ask him for a divorce (talaaq) or to ask for 79

Jurisprudence and Islamic Rulings

khula’, but you do not have to do that, rather it is o.k. for you to stay with him and live with him whilst continuing to advise him to do that which is better, especially if there is the hope that he will mend his ways. With regard to eating from his money, if he has a permissible source of income other than this, then there is no sin on you or on you children if you eat from this money. But if all his earnings are haraam and you cannot find any other source of maintenance, and you have no other halaal source of income, then it is permissible for you to take just what you need, and no more, because Allaah says (interpretation of the meaning): “So keep your duty to Allaah and fear Him as much as you can” [al-Taghaabun 64:16] So in this case if you take money, you are taking what he is obliged to spend on you. But you should still continue to advise him and tell him to refrain from taking haraam loans, and to look for a way that is acceptable according to sharee’ah, so that he can do work and earn his provision thereby. And Allaah is the Source of strength. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 11798: How should a man take back his wife after divorcing her? Question: I know when getting married a person needs their parents 80

Transactions - Part 5

blessing and consent but what if a married couple are separated and are considering returning to each other, do they still need their parents blessing all over again? Answer: Praise be to Allaah. If a man divorces his wife and this is the first or second talaaq and she has not ended her ‘iddah (by giving birth if she is pregnant or by the passage of three menstrual cycles), then he can take his wife back by saying, “I am taking you back” or “I am keeping you.” Then his taking her back is valid. Or he may do some action intending thereby to take her back, such as having intercourse with the intention of taking her back. The Sunnah is to have two witnesses to the fact that he has taken her back, so that two witnesses testify to that, because Allaah says (interpretation of the meaning): “Then when they are about to attain their term appointed, either take them back in a good manner or part with them in a good manner. And take as witness two just persons from among you (Muslims)”[al-Talaaq 65:2] In this manner a man may take his wife back. But if the ‘iddah has ended following a first or second talaaq, then there has to be a new marriage contract. In this case he has to propose marriage like any other man, to her guardian and to her. When she and her guardian agree and they agree upon a mahr, then the marriage contract is completed. That must be done in the presence of two just witnesses. But if the divorce is the final – i.e., third – divorce, then she becomes haraam for him until another man has 81

Jurisprudence and Islamic Rulings

married her, because Allaah says (interpretation of the meaning): “And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband” [al-Baqarah 2:230] So it is not permissible for him to marry her unless she has been married to another man and the marriage has been consummated, then he leaves her either through death or divorce. This marriage must be a legitimate shar’i marriage; if she marries him just to make it permissible for her to go back to her first husband, that is not permitted and she does not become permissible (to the first husband). See Fataawa al-Talaaq by Shaykh ‘Abd al-‘Azeez ibn Baaz, 1/195-201. (www.islam-qa.com) 12496: A husband has not been fulfilling his responsibility towards his wife for five years Question: If the husband does not take the responsiblity of a wife throughout his marraige of 5 years . what is the wife suppose to do in such case, Is she entitled to maintaince, or if she decides to have a seperation what is the procedure for the divorce according to Quran and sunnah? Answer: Praise be to Allaah. Undoubtedly it is the husband’s obligation to spend on his wife and to do his duty towards her and give her all 82

Transactions - Part 5

her rights. If he fails her and falls short in his duties towards her, or he causes her harm, then she has the right to demand separation, i.e., divorce. But before that she has to ask him to spend on her and provide her with accommodation, because Allaah says (interpretation of the meaning): “Lodge them (the divorced women) where you dwell, according to your means” [al-Talaaq 65:6] “Let the rich man spend according to his means; and the man whose resources are restricted, let him spend according to what Allaah has given him. Allaah puts no burden on any person beyond what He has given him”[alTalaaq 65:7] And he has to live with her honourably. Allaah says (interpretation of the meaning): “and live with them honourably”[al-Nisaa’ 4:19] If her husband gives her her rights as prescribed in sharee’ah, then it is haraam for her to ask for divorce, because the Prophet (peace and blessings of Allaah be upon him) said: “Any woman who asks for divorce when there is no reason, the fragrance of Paradise will be forbidden to her.” But if she is being harmed, and the situation is too much for her to bear, and he is not spending enough on her or he is not giving her her rights, then she has the right to ask for a divorce. She should go to the qaadi and explain the situation to him, and he in turn should ask the husband to give her her rights or to divorce her. Shaykh ‘Abd-Allaah ibn Jibreen. (www.islam-qa.com) 83

Jurisprudence and Islamic Rulings

11681: Does leaving one’s wife for a long time count as divorce? Question: I am the second wife of a man from XXX . I have recently reverted to Islam and my 3 kids have also. My question is My husbands wife in XXX has been without him for 14 months now. He doesn’t give her the equallity that he is suppose to and she is very upset. I was told that if a man is away from his eife for more than 4 months, that this automatically means that they are divorced. is this true? He wants to stay married for his daughters sake, and I feel it is wrong for him to keep stringing her along. I’m not sure she knows that he plans on remaining here in the XXX . and only visiting XXX a few months a year. Please help me with this. alot of people are being hurt? Answer: Praise be to Allaah. So long as the husband has not uttered the word of divorce to her, and the wife has not gone to the qaadi to seek a divorce, then divorce has not taken place. She is still his wife and divorce does not take place automatically. Shaykh Ibn Baaz (may Allaah have mercy on him) was asked when a woman is considered to be divorced. He said: “A woman is considered to be divorced when her husband pronounces the word of divorce to her, when he is of sound mind and under no compulsion to do so, and there is no impediment to divorce such as his being insane or intoxicated, etc., and the woman is pure (not menstruating or bleeding following childbirth) and he has not had 84

Transactions - Part 5

intercourse with her since she became pure, or she is pregnant or post-menopausal.” Fataawa al-Talaaq by Shaykh Ibn Baaz, 1/35 It is haraam for this husband to do this and leave his first wife, and not treat her fairly or justly. By doing this he is exposing himself to the stern warning. It was narrated that Abu Hurayrah said: “The Messenger of Allaah (peace and blessings of Allaah be upon him) said: “Whoever has two wives and inclines more to one of them than the other, will come on the Day of Resurrection with half of his body leaning.” (Narrated by Ibn Maajah, 1959; classed as saheeh by alAlbaani in Saheeh Sunan Ibn Maajah, no. 1603). If the first wife is being harmed by this, she has the right to refer the matter to the qaadi, so that he can force the husband either to divorce her or to annul the marriage. Because the scholars considered not having intercourse with one’s wife with the intention of harming her, even if he has not sworn an oath to that effect, to come under the same ruling as one who takes an oath not to have sexual relations with his wife (cf. al-Baqarah 2:226). In this case, if he does not go back to his wife and refuses to divorce her, then the judge may make him divorce or annul the marriage. And Allaah knows best. See al-Mulakhkhas al-Fiqhi by al-Fawzaan, 2/321 See also Question no. 9021. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 85

Jurisprudence and Islamic Rulings

14219: Doubt concerning the number of divorces (talaaq) Question: A person divorced his wife but he is not sure of the number of divorces, whether it was two or three. What is the ruling in this case? Answer: Praise be to Allaah. If the husband is unsure as to whether he uttered the word of divorce at all, or as to the number of divorces he has uttered, then he should act on the basis of what is certain. So if he is not sure whether he has divorced her or not, the basic principle is that divorce has not taken place, because [in this instance] nikaah (marriage) is something which is certain, and divorce is something concerning which there is uncertainty. One of the basic principles is that certainty cannot be overridden by doubt. If he is uncertain as to whether he has divorced her once or twice, he should assume that he has divorced her once, because this is what is certain. Shaykh Dr. Khaalid ibn ‘Ali al-Mushayqih. (www.islamqa.com) 12287: Divorcing a woman by talaaq when she is pregnant Question: My husband divorced me while I was pregnant than before I gave birth to my child he came back and said that we are not divorced since pregnant women can’t be divorced. 86

Transactions - Part 5

So I would like to know am I really divorced or not. My husband and I love each other very much and now we have a baby son. Please do reply to me as soon as possible. Answer: Praise be to Allaah. Shaykh Ibn Baaz (may Allaah have mercy on him) was asked whether a woman may be divorced by talaaq when she is pregnant. He said: This is an idea which is common among some people. Some of the people think that a pregnant woman cannot be divorced by talaaq. I do not know where they get this idea from, for it has no basis in the words of the scholars. Rather the view of all the scholars is that a pregnant woman can be divorced by talaaq. There is consensus on this point among the scholars, and there is no dispute. Talaaq according to the Sunnah means that a woman may be divorced in two cases: 1 – She may be divorced when she is pregnant; this is a Sunnah divorce and is not bid’ah. 2 – She should be taahir (pure, i.e., not menstruating) and her husband should not have touched her (i.e., had intercourse with her), i.e., she should have become taahir following menstruation or nifaas (post-natal bleeding) and before he has intercourse with her. Talaaq in this case is in accordance with the Sunnah. Fataawa al-Talaaq by Shaykh Ibn Baaz, 1/45-46 So long as he took her back during the ‘iddah, then she is still his wife, because the ‘iddah of a woman who is pregnant ends when she gives birth, and her husband took 87

Jurisprudence and Islamic Rulings

her back before she gave birth. Allaah says (interpretation of the meaning): “And for those who are pregnant (whether they are divorced or their husbands are dead), their ‘Iddah (prescribed period) is until they lay down their burden” [al-Talaaq 65:4] This is the ‘iddah of the pregnant woman whether she is divorced or widowed. The husband should count this as one talaaq. And Allaah knows best. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 10438: Can he take his wife back after her ‘iddah has ended? Question: Can a man and a woman go back together if they have been seperated for a long time.They were husband and wife. Answer: Praise be to Allaah. If a man divorces his wife with the first or second talaaq, once her ‘iddah is over she is divorced and becomes a “stranger” (non-mahram) to him; she cannot go back to him except with a new marriage contract which fulfils all the conditions set out in sharee’ah (see Question no. 2127). But if he divorces his wife with the third talaaq, then she 88

Transactions - Part 5

becomes haraam to her first husband until she has married a second husband in a genuine marriage which is consummated. The Qur’aanic evidence for that is the aayah (interpretation of the meaning): “The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness… And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband” [al-Baqarah 2:229-230] The last divorce refers to the third divorce, according to all the scholars. The evidence from the Sunnah is the hadeeth narrated by ‘Urwah ibn al-Zubayr, according to which ‘Aa’ishah told him that the wife of Rifaa’ah al-Qurazi came to the Messenger of Allaah (peace and blessings of Allaah be upon him) and said, “O Messenger of Allaah, Rifaa’ah divorced me thrice, then I was married to ‘Abd alRahmaan ibn al-Zubayr al-Qurazi, but he has nothing with him except something like this fringe. The Messenger of Allaah (peace and blessings of Allaah be upon him) said, “Perhaps you want to go back to Rifaa’ah? No, (it is not possible), unless and until you enjoy the sexual relation with him (‘Abd al-Rahmaan), and he enjoys the sexual relation with you.” (Narrated by al-Bukhaari, 4856; Muslim, 2587) The phrase “divorced me three times” means that this was the divorce which meant that she was no longer married to him, which is the third talaaq. The Prophet’s words “until you enjoy the sexual relation with him (‘Abd al-Rahmaan), and he enjoys the sexual relation with you” refer to intercourse. Al-Nawawi said: “This hadeeth indicates that the woman 89

Jurisprudence and Islamic Rulings

who has been divorced by a third talaaq is not permissible to the man who has divorced her until she has been married by another husband, who has intercourse with her then separates from her, and she completes her ‘iddah. Merely drawing up the marriage contract with her does not make her permissible to the first husband. This is the view of all the scholars among the Sahaabah, Taabi’een and those who came after them. Sharh Muslim, 10/3 And Allaah knows bets. May Allaah bless our Prophet Muhammad. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 14024: Is it permissible for a man who has divorced his wife by khula’ to go back to her during the ‘iddah? Question: Is it permissible for a man who has divorced his wife by khula’ to go back to her during the ‘iddah? Answer: Praise be to Allaah. Ibn Katheer (may Allaah have mercy on him) said: There is unanimous agreement that the man who has divorced his wife by khula’ may take her back during the ‘iddah. Tafseer Ibn Katheer, 1/277 (www.islam-qa.com) 90

Transactions - Part 5

9787: Can a person divorce his wife who is the mother of his children? Question: I heard from some of the common folk that the mother of one’s children cannot be divorced. Is this true? Do any of the scholars say this? Answer: Praise be to Allaah. This view is false and has no basis in sharee’ah. I do not think that any scholar or seeker of knowledge could give a fatwaa expressing such a false view. The Qur’aan, Sunnah and scholarly consensus (ijmaa’) indicate that if a man divorces his wife, whether she is young, middleaged or old, when she is “pure” (i.e., not menstruating) and he has not had intercourse with her, or she is pregnant and it is obvious that she is pregnant, then she is divorced. Allaah says of divorced women who are of child-bearing age: “And divorced women shall wait (as regards their marriage) for three menstrual periods” [al-Baqarah 2:228 – interpretation of the meaning] Allaah says concerning divorced women who have passed through menopause: “And those of your women as have passed the age of monthly courses, for them the ‘Iddah (prescribed period), if you have doubt (about their periods), is three months; and for those who have no courses…” [al-Talaaq 65:4 – interpretation of the meaning] 91

Jurisprudence and Islamic Rulings

Then He said concerning divorced women who are pregnant: “And for those who are pregnant (whether they are divorced or their husbands are dead), their ‘Iddah (prescribed period) is until they lay down their burden” [al-Talaaq 65:4 – interpretation of the meaning] If it is the third talaaq (divorce), then she is irrevocably divorced and it is not permissible for him to take her back until she has been married to someone else. If it is the first or second talaaq, then two witnesses should bear witness and he should take her back. Abu Dawood narrated in his Sunan via Yazeed al-Rashk from Mutarrif ibn ‘Abd-Allaah that ‘Imraan ibn Husayn was asked about a man who divorced his wife then had intercourse with her, and there were no witnesses when he divorced her or when he took her back. He said: he divorced her in a manner that was not according to the Sunnah and he took her back in a manner that was not according to the Sunnah. Bring witnesses when divorcing a woman or taking her back, and do not do that again. Shaykh Sulaymaan ibn Naasir al-‘Alwaan (www.islamqa.com) 12902: Is it better for a man to divorce his second wife with whom he quarrels, so that she can have some peace? Question: Is it allowable for a husband to divorce his (second) wife without her doing anything wrong? This man found out that he does not have much in common with his wife, often fights with her and dislikes things about her through no fault of hers. Would it not be better to let her free to 92

Transactions - Part 5

marry someone who would love her and cherish her than to keep her in a much-less-than ideal situation? Answer: Praise be to Allaah. The man has to treat both of his wives fairly, and to fear Allaah with regard to them. The woman should resist her jealousy and strive to control herself (jihad al-nafs) and not cause trouble to her husband because he has another wife. “The basic principle concerning divorce is that it is makrooh (disliked), and if we say that the basic principle is that it is forbidden, this is not far-fetched. This is indicated by the words of Allaah concerning those who take an oath not to have sexual relations with their wives. He said (interpretation of the meaning): ‘… then if they return (change their idea in this period), verily, Allaah is Oft-Forgiving, Most Merciful. And if they decide upon divorce, then Allaah is All-Hearer, All-Knower’ [al-Baqarah 2:226-227] The aayah ends with these two names, ‘All-Hearer, AllKnower’, if they decide upon divorce, to indicate that Allaah does not like that, because in the case of one who returns or comes back to his wife after swearing not to have intercourse with her, it says that ‘Allaah is OftForgiving, Most Merciful.’ This makes it clear that Allaah likes the one who has sworn such an oath to go back (to his wife). In the case of one who has decided to divorce his wife, the use of the words 93

Jurisprudence and Islamic Rulings

‘Allaah is Oft-Forgiving, Most Merciful’ indicates that Allaah dislikes that. It was narrated that the Prophet (peace and blessings of Allaah be upon him) said: ‘The most hated of permissible things to Allaah is divorce.’ This hadeeth is not saheeh, but its meaning is saheeh. Allaah dislikes divorce, but He does not forbid it to His slaves, to make things easier for them. If there is a valid reason for divorce, in sharee’ah or otherwise, then that is permissible. Whether there is a valid reason depends on whether the woman’s remaining married will lead to some shar’i reservation that can only be alleviated by divorce, then he may divorce her, such as when the woman is lacking in religious commitment or chastity, and he is unable to reform her. In such cases, we say that it is better for him to divorce her. But if there is no such valid reason, whether shar’i or otherwise, then we say that it is better not to divorce her; indeed in such a case divorce would be makrooh.” (As’ilat al-Baab al-Maftooh by Ibn ‘Uthaymeen, p. 113) With regard to the woman mentioned in the question, if she is able to live with her husband in a good manner, and if each of them can put up with the other at times of short-lived anger, then this will be better for her, for him, for their children and for the family of each partner. If a good life cannot continue between them for some reason on the part of one or both of them, and it appears that separation is better for her or for him or for both of them, then Allaah says (interpretation of the meaning): “But if they separate (by divorce), Allaah will provide abundance for everyone of them from His Bounty” [al-Nisaa’ 4:130] Allaah may provide her with a husband better than him, who will be more righteous and treat her more kindly. 94

Transactions - Part 5

May Allaah help us all to do that which He loves and which pleases Him. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 12179: Can the qaadi (judge) annul a marriage without the husband being present? Question: Is muslim qazi permitted to invoke the proceedings of khula on the unilateral initiation of woman living away from her husband in the absence of her husband? Answer: Praise be to Allaah. Yes, that is permissible, because the qaadi (judge) has the authority to separate husband and wife and thus end the marriage if it is impossible for them to maintain a stable marriage and if the wife is being harmed by her husband’s neglect, whether it be sexual, economic or social. The qaadi should study each case on its own merits and look into the circumstances surrounding each case. The husband’s absence has no effect on the validity of the annulment. Shaykh Ibraaheem al-Khudayri (www.islam-qa.com) 5684: Is premature ejaculation grounds for divorce? Question: Is ejaculation praecox (early ejaculation) a reason for the 95

Jurisprudence and Islamic Rulings

wife to brake the marriage? I know that impotence is a reason for that, but if someone comes afte 10 or 20 seconds, how it is in this case. Answer: Praise be to Allaah. We put this question to Shaykh Muhammad ibn Saalih al-‘Uthaymeen, who replied that if this is upsetting the wife and causing her to miss out on her own pleasure, then there is nothing wrong with her asking for a divorce, but if she has children she should not be too hasty. And Allaah knows best. Shaykh Muhammad ibn Saalih al-‘Uthaymeen (www.islam-qa.com) 10209: He divorced her but did not send her the divorce papers Question: Her husband divorced her and the ‘iddah came to an end, but she cannot get the divorce papers from the Islamic centre or get any proof of the divorce from the courts in the city to which she has moved. Is it permissible for her to remarry? Answer: Praise be to Allaah. We put this question to Shaykh ‘Abd-Allaah ibn Jibreen, may Allaah preserve him, who answered as follows: 96

Transactions - Part 5

She should ask for an annulment of the marriage in the city where she has moved to, on the grounds that her husband is absent and is not sending her any money to live on. This annulment will take the place of a divorce. And Allaah knows best. Shaykh ‘Abd-Allaah ibn Jibreen (www.islam-qa.com) 5792: He said, “I don’t think my wife belongs to me” Question: A person said, “I don’t think my wife belongs to me”. Does this count as talaaq (divorce)? Answer: Praise be to Allaah. We put this question to Shaykh Muhammad ibn Saalih al-‘Uthaymeen, may Allaah preserve him, who replied that this expression is not a clear statement of talaaq, so we would have to look at what he meant when he said it. And Allaah knows best. Shaykh Muhammad ibn Saalih al-‘Uthaymeen (www.islam-qa.com) 5225: He wrote a letter of divorce to his wife intending to send it at the end of the month Question: His wife insisted on divorce, and he told her “Think about 97

Jurisprudence and Islamic Rulings

it for one month.” But she did not change her mind, and she left. When the month was nearly over, he wrote a letter of divorce, intending to send it to her exactly at the end of the month. She got in touch with him one day before the end of the month and said, “I want to come back.” So did the divorce take place? Answer: Praise be to Allaah. We put this question to Shaykh Muhammad ibn Saalih al-‘Uthaymeen, may Allaah preserve him, who replied as follows: The matter is according to his intention; if he intended divorce, then the divorce has happened. But it seems that he did not want the divorce to happen until the end of the month, so on this basis the divorce did not happen. And Allaah knows best. Shaykh Muhammad ibn Saalih al-‘Uthaymeen (www.islam-qa.com) 1859: Examples of acceptable reasons for asking one’s husband for khula’ Question: Is it possible for the wife to get a khula even if the husband will not agree to it? Can you mention some reasons ?. Answer: Praise be to Allaah. 98

Transactions - Part 5

I put this question to our Shaykh ‘Abd-Allaah ibn ‘Abd al-Rahmaan ibn Jibreen, and he answered as follows: If a woman dislikes her husband’s treatment of her – for example, he is over-strict, hot-tempered or easilyprovoked, or gets angry a lot, or criticizes her and rebukes her for the slightest mistake or shortcoming, then she has the right of khula’ [female-instigated divorce]. If she dislikes his physical appearance because of some deformity or ugliness, or because one of his faculties is missing, she has the right of khula’. If he is lacking in religious commitment – for example, he doesn’t pray, or neglects to pray in jamaa’ah, or does not fast in Ramadaan without a proper excuse, or he goes to parties where haraam things are done, such as fornication, drinking alcohol and listening to singing and musical instruments, etc. – she has the right of khula’. If he deprives of her of her rights of spending on her maintenance, clothing and other essential needs, when he is able to provide these things, then she has the right to ask for khula’. If he does not give her her conjugal rights and thus keep her chaste because he is impotent (i.e. unable to have intercourse), or because he does not like her, or he prefers someone else, or he is unfair in the division of his time [i.e., among co-wives], then she has the right to ask for khula’. And Allaah knows best. Shaykh ‘Abd-Allaah ibn ‘Abd al-Rahmaan ibn Jibreen (www.islam-qa.com) 11105: Is a divorce done by the judge valid? Question: Is a divorce (talaaq) or annulment of marriage (faskh) 99

Jurisprudence and Islamic Rulings

done by a judge in a civil, non-sharee’ah court valid, in a case where the husband or wife approached the court which rules according to man-made laws to deal with the demand or request to end the marriage contract, because there is no Islamic qaadi? Answer: Praise be to Allaah. The marriage contract may be drawn up according to sharee’ah outside this court, then it may be taken to the court for official confirmation. With regard to divorce, it is not conditional for it to be registered in the court. A husband may issue a divorce before two sound witnesses, which may be written on a piece of paper which is signed by the husband and two witnesses. Divorce may be done in this manner, but a man should not divorce his wife whilst she is menstruating or during a period of purity in which he has had intercourse with her, unless they have found out that she is pregnant. From the fatwas of Shaykh Muhammad ibn Saalih al‘Uthaymeen for al-Daw’ah magazine, issue no. 1762, p. 37 (www.islam-qa.com) 10186: She is divorced – should she go back to her family’s country? Question: I’m a working mother in the USA. I just got divorce but I’m confused my husband is threatening me if I decide to go back home to my family he can take my son a way because they are both American citizen ,but not me. My question to you Am I upsetting Allah for sitting her without 100

Transactions - Part 5

a Muhram & what can I do? It’s hard to any of my family member to come to the USA. Answer: Praise be to Allaah. We put this question to Shaykh Muhammad ibn Saalih al-‘Uthaymeen, may Allaah preserve him, who answered as follows: There is nothing wrong with her staying, if she is sure that she will be safe (from falling into sin), because this is her country now and she is living there. She is not a traveller now. Perhaps she will find a new husband soon and get married. And Allaah knows best. Shaykh Muhammad ibn Saalih al-‘Uthaymeen (www.islam-qa.com) 9481: Can she ask for divorce because he is beating her? Question: CAN A WIFE OF A FEW MONTHS, AND PREGNANT DIVORCE HER HUSBAND DUE TO THE FACT THAT HE DOESN’T SUPPORT HER IN THE CUSTOM SHE IS USED TO, BEATS HER UP, DOESN’T RESPECT HER, AND REFUSES FOR HER TO GO TO THE MOSQUE TO PRAY, ALL THIS BECAUSE SHE REFUSES TO GIVE PERMISSION FOR HIM TO MARRY AN AMERICAN WOMAN WHO ONLY BECAME MUSLIM RECENTLY AFTER HE WAS MARRIED TO THIS TURKISH WOMAN. HE IS ALSO AN AMERICAN, HE AND THIS OTHER WOMAN HAVE A CHILD OUT OF WEDLOCK. 101

Jurisprudence and Islamic Rulings

Answer: Praise be to Allaah. A woman has the right to ask for divorce when her husband mistreats her in a way that she cannot stand and cannot bear with patience, or if he falls short in his obligatory spending on her, or if he is someone who indulges in these evil actions – if she thinks that leaving him is in her best interests and will protect her commitment to Islam and her chastity. Shaykh Waleed al-Firyaan (www.islam-qa.com) 10613: Does a husband have to be patient with his wife all the time and not divorce her? Question: We know that the wife of Nuh (as), and the wife of Lut (as) went to jahannam, may Allah protect us from his displeasure, amin. Is this evidence that brothers should patient with their wives all the time, and not divorce them? I have heard that the Messenger of Allah, (pbuh), divorced women. What is the difference between keeping a woman with bad behavior and counseling her, and getting rid of a woman with bad behavior? Answer: Praise be to Allaah. Undoubtedly the wives of Nooh and Loot (peace be upon them) will enter Hell with those who will enter it, but they did not commit any obvious sin that would imply kufr, otherwise it would not have been permissible for 102

Transactions - Part 5

these Prophets to have remained married to kaafir women, because Allaah says (interpretation of the meaning): “… Likewise hold not the disbelieving women as wives” [al-Mumtahanah 60:10] Perhaps the wife of Nooh was concealing kufr, or perhaps, despite the fact that Nooh had been calling people to Allaah for so long, she was influenced by the call of her people when she saw that all of her people were following kufr, so she became doubtful and wondered how he alone could be a believer when all of these people were disbelievers, and they formed the majority of their nation. So her kufr may have been secret. The same applies to the wife of Loot, of whom they said that her only sin was that she told her people about his guests, i.e., she called them to come and commit obscene actions with them. This was her sin, but it is possible that she was also a kaafir in secret. Hence Allaah said (interpretation of the meaning): “… except his wife, she will be of those who remain behind” [al-‘Ankaboot 29:32] This is a summary of the response given by Shaykh ‘AbdAllaah ibn Jibreen, may Allaah preserve him. It is permissible for a husband to divorce his wife so long as there is a shar’i reason for doing so, such as a lack of religious commitment, a bad attitude, lack of chastity, negligence, etc., even if she is not a kaafir. But if she is a righteous believer, let him keep her, even if he dislikes some of her characteristics, as the Prophet (peace and blessings of Allaah be upon him) said. It was narrated that Abu Hurayrah said: the Messenger of Allaah (peace and blessings of Allaah be upon him) said: “Let not a

103

Jurisprudence and Islamic Rulings

believing man hate a believing woman. If he dislikes one of her attributes, he will be pleased with another.” (Narrated by Muslim from Abu Hurayrah, 1469). When the Prophet (peace and blessings of Allaah be upon him) wanted to divorce Hafsah, Allaah revealed to him: Go back to Hafsah, for she fasts a lot and prays a lot at night, and she will be your wife in Paradise. Al-Mundhiri said: this was narrated by al-Nasaa’i and Ibn Maajah. ‘Awn al-Ma’bood Sharh Sunan Abi Dawood, hadeeth no. 2283. The husband has to strive to reform his wife and pray to Allaah to reform her. Allaah will reform a wife in whom there is some crookedness, if He wills, as He said concerning His slave Zakariya (interpretation of the meaning): “… and [We] cured his wife for him…” [al-Anbiya’ 21:90] Some of the mufassireen (commentators) said that she used to have a sharp tongue, i.e., her speech towards her husband was offensive, so Allaah reformed her. A man may put up with the difficulty of keeping his wife in order to ward off a greater difficulty, which is that of separating the children and dividing the family. But if the harm caused by staying with one’s wife is greater than the harm caused by separating from her, there is nothing wrong with him divorcing her. And Allaah is the Source of strength. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com)

104

Transactions - Part 5

11761: She said to her husband “Divorce me”, and he said, “I agree” Question: I asked our shaykh, Shaykh Muhammad ibn Saalih al‘Uthaymeen, the following question: She said to her husband “Divorce me”, and he said, “I agree”, or she said to her husband “I want a divorce”, and he said, “I agree”. Does divorce take place when these words are said? Answer: He answered, may Allaah preserve him: Praise be to Allaah. Divorce does not happen by saying this. Shaykh Muhammad ibn Saalih al-‘Uthaymeen (www.islam-qa.com) 5373: She got divorced overseas and the divorce papers are not recognized by the official department Question: A moslimah married a moslem at a mosque in Germany. Then she was divorced and got a paper certifying her divorce. When she tried to marry again with another moslem in an arabic country, the marriage authority there did not accept the divorce-paper because it did not include the names Of two witnesses. 105

Jurisprudence and Islamic Rulings

Now this mosque in germany does not exist any more. The man she married and was divorced from him has travelled away and she does not know his adress. Question: What can be done so that she can marry again? Answer: Praise be to Allaah. We put this question to Shaykh Muhammad ibn Saalih al-‘Uthaymeen, may Allaah preserve him, who answered as follows: Yes, she can marry outside the Islamic centre, but the marriage has to be conducted on her behalf by her walee (guardian) (along with all the other conditions of nikaah – see Question #2127). The final condition is that her ‘iddah (waiting period following divorce) should have ended. And Allaah knows best. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 6125: Thrice-divorced at one time Question: My friends husband was angery he prounounced “I divorce you” three times at the same time. He was suspicious of her. When he was leaving divorced her and at the same time he said if you only love me come back to me. My friend is so upset she does not know what to do. Is the divorce vaild. Please reply in details. May Allah bless you. Thankyou.

106

Transactions - Part 5

Answer: Praise be to Allaah. A divorce (talaaq) uttered at a time of anger where a man has reached the point where he is not aware of what he is saying and thus may be classified as (temporarily) insane, does not count as divorce. But if he was aware of what he was saying, then it does count as divorce, and because he has divorced her three times, he cannot remarry her unless some else has married and divorced her. But if he is uncertain as to whether he spoke the words of divorce or not, then this does not count as divorce, because the basic principle is that she is his wife and is not divorced unless it is certain. The simple fact that a husband and wife love one another does not mean that he can go back to her after they are divorced. And Allaah knows best. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 6532: He wants to help a divorced woman Question: What about young women who were forced by their parents to marry someone, without their will and are now divorced ! I know a person which I want to marry probably, she has to fight with negative thoughts that she is only half a woman and that she is a woman of second class after she divorced by her husband.Her family treatens her like a 107

Jurisprudence and Islamic Rulings

slave and she can’t trust no men, after all it was the failure of her parents as she never wanted this marriage. I want to help her and I hope, when Allah gives me the help and the strength, to marry her.I do not know what to do because she is blocking and I hope that you can help me in helping her to get rid of this negative thoughts.I told her that I have no problem with the past situation but she means that my parents would have a problem with this. Are my parents allowed to forbid me to marry a person who was already married, when she is pure, religious and full of chasity? I know that I need their will when I want to marry a person, but the Quran doesn’t teach about such a situation. How can I help her, I would do anything to give her the strength to get over this. Please help me ! Answer: Praise be to Allaah. Undoubtedly the best is to marry a woman whom your parents approve of. If you want to help this woman by marrying her, then try to convince your parents, and you will be rewarded in sha Allaah. If they are not convinced, then look for a Muslim brother who can marry her and take care of her. With regard to divorced women, if a divorced woman is religious and well-mannered, then she is of high standing and her divorce has no effect on her worth and does not make her of any less value before Allaah. She has to remain steadfast and not let these groundless ideas affect her. We would also like to draw your attention to the fact that it is not permissible to form a relationship with a non-mahram woman and call her or contact her for no reason, because of the temptation that this may pose to her or to you. We ask Allaah to give you and her strength. 108

Transactions - Part 5

Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 6315: The one who causes the divorce of a woman Question: A man married without the knowledge of his parents and (first) wife, and they thought that the woman was not a Sunni, so his mother insisted that he should divorce her and she urged his father to force him to divorce her. So he divorced her in obedience to them. Then his mother regretted asking him to do that, and she is asking whether there is any sin on her and if so, what the kafaarah (expiation) is. Answer: Praise be to Allaah. According to the most correct opinion, it is not permissible to divorce a woman without a valid reason, because this is unjust to the woman and causes the blessing of marriage to be lost for no reason, and the break up of a family with which Allaah had blessed the sons of Adam, as Allaah says (interpretation of the meaning): “And among His Signs is this, that He created for you wives from among yourselves, that you may find repose in them, and He has put between you affection and mercy. Verily, in that are indeed signs for a people who reflect” [al-Room 30:21] Obedience to one’s parents should only be with regard to things that are right and good, that Allaah and His Messenger love. It is not permissible to obey them with 109

Jurisprudence and Islamic Rulings

regard to something that Allaah and His Messenger have forbidden, as the Prophet (peace and blessings of Allaah be upon him) said: “There is no obedience to anyone if it involves disobedience towards Allaah; obedience is only with regard to what is right and good.” (Narrated by alBukhaari and Muslim from Ali, may Allaah be pleased with him). And Allaah says (interpretation of the meaning); “But if they (both) strive with you to make you join in worship with Me others that of which you have no knowledge, then obey them not; but behave with them in the world kindly, and follow the path of him who turns to Me in repentance and in obedience” [Luqmaan 31:15] No kafaarah is required from either the mother or the father, apart from tawbah (repentance) and istighfaar (seeking forgiveness); they should also try to put matters right and bring people together again. If they do this, they will have a reward (from Allaah). Allaah says (interpretation of the meaning): “There is no good in most of their secret talks save (in) him who orders Sadaqah (charity in Allaah’s Cause), or Ma‘roof (Islâmic Monotheism and all the good and righteous deeds which Allaah has ordained), or conciliation between mankind; and he who does this, seeking the good Pleasure of Allaah, We shall give him a great reward” [al-Nisa’ 4:114] And Allaah knows best. Massa’il wa rasaa’il, Muhammad al-Mahmoud al-Najdi, p. 59. (www.islam-qa.com) 110

Transactions - Part 5

4459: Does the father have to pay for the children to travel to visit their divorced mother? Question: the children from a previous marriage were living with me.their mother moved 400 miles away and remarried. she claims that it is my duty to provide the children with transportation to visit her. is that true? Answer: Praise be to Allaah. We put this question to Shaykh Muhammad ibn Saalih al-‘Uthaymeen, may Allaah preserve him, who answered as follows: No, that is not correct, but if Allaah has made the husband rich and the wife’s position is average or less, then it is part of chivalry or manliness that he should pay for that – but it is not obligatory. And Allaah knows best. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 4343: When a Muslim signs papers divorcing his wife in front of a non-Muslim judge Question: i married a muslem man feb 15, 1997. i was married under islamic law and the laws of the state of virginia. i am christain. 111

Jurisprudence and Islamic Rulings

i told him i wanted a divorce and he said he did not want it but he would give it to me if i wanted it. i went to a lawyer and filed for divorce. he signed the waiver and sent it back to me (he lives in new york) federal express , he said he wanted it done fast. the paper was witnessed by a notery public. i held the papers for one week. i called him and asked him if he wanted me to hold the paper, he said it did not matter. i sent the paper back to my lawyer and it was sent to court. the divorce was finalized nov. 2, 1999. now he says that we are not divorced. am i divorced from this man by islamic law? he belongs to the shafghy school. he is suni. Answer: Praise be to Allaah. We put the following question to Shaykh Muhammad ibn Saalih al-‘Uthaymeen, may Allaah preserve him: Has a man agreed to divorce his wife or has he already divorced her, if what he said was: “I agree to divorce my wife and she is now to be considered divorced”? He answered: This is a divorce, and if she has completed her ‘iddah (waiting period of three menstrual cycles following divorce) then she is free to marry someone else. But if they have children together, I advise him to go back to her. He has the right to take her back so long as he issued just one divorce. And Allaah knows best. 112

Transactions - Part 5

Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 3292: He swore that if he did something, the first wife he married would be thrice-divorced Question: Assalam-u-alaikum, A close friend of mine is about to marry and is in difficulty because of a statement he had made some time ago. A few years ago when he was single, he swore that if he does a certain work which he hated, he gives three divorces on his first wife. He told me that he believes he did that work later on. At that time he was not engaged, nor did he know for sure who he was going to marry. Now its been a long time and he intends to marry a women, but isn’t sure if his statement is going to make his marriage null or not. The brother realizes that he made a foolish statement and wants to know what to do. Jazakumullaho khair. Wassalamu alaikum Answer: Praise be to Allaah. Imaam al-Bukhaari (may Allaah have mercy on him) said in his book al-Jaami’ al-Saheeh: Chapter: there is no divorce before marriage. Allaah says (interpretation of the meaning): “O you who believe! When you marry believing women, and then divorce them before you have sexual intercourse with them, no ‘iddah 113

Jurisprudence and Islamic Rulings

have you to count in respect of them. So give them a present, and set them free, i.e., divorce in a handsome manner.” [al-Ahzaab 33:49]. Ibn ‘Abbaas said: “Allaah made divorce after marriage.” Among the evidence that there is no divorce before marriage (nikaah) are the following reports: The hadeeth of ‘Abd-Allaah ibn ‘Amr (may Allaah be pleased with him), who said: “The Messenger of Allaah (peace and blessings of Allaah be upon him) said: ‘There is no vow for the son of Adam with regard to that which he does not possess; there is no setting free of (a slave) whom he does not possess; there is no divorce of (a wife) whom he does not possess.” (Reported by al-Tirmidhi, who said: a saheeh hasan hadeeth). The hadeeth of ‘Abd-Allaah ibn ‘Amr (may Allaah be pleased with him), who reported that the Messenger of Allaah (peace and blessings of Allaah be upon him) said: “No divorce except of (the wife) whom you possess; no setting free except of (the slave) whom you possess, and no selling except of (the goods) that you possess.” (Reported by Abu Dawood; it is a hasan hadeeth). The hadeeth of Ibn Makhramah from the Prophet (peace and blessings of Allaah be upon him), who said, “No divorce before marriage, and no setting free before taking possession.” (Reported by Ibn Maajah; it is a hasan hadeeth). Ibn al-Qayyim (may Allaah have mercy on him) said: “Abu ‘Ubayd reported that ‘Ali (may Allaah be pleased with him) was asked about a man who said, ‘If I marry so-and-so, then she is divorced (straightaway).’ ‘Ali said: ‘There is no divorce except after taking possession.’ It was also reported that ‘Ali said: ‘There is no divorce 114

Transactions - Part 5

except after marriage even if he mentioned (the woman) by name.’ This is the opinion of ‘Aa’ishah, and also of al-Shaafa’i, Ahmad and Ishaaq and their companions, and of Dawood and his companions, and of the majority of hadeeth scholars. Among the evidence to support this opinion is the fact that when a man says, ‘If I marry so-and-so then she is divorced’, at the time when this suspended divorce is uttered, the woman is still ajnabiyyah (literally, ‘a stranger’, not his wife or mahram) to him, and the thing that comes later [i.e., marriage] takes precedence over whatever went before [i.e., the vow of divorce]. Nikaah (marriage) cannot be divorce. Similarly, if he said to a woman to whom he is not married yet, ‘If you enter the house you will be divorced,’ then she entered the house after she became his wife, then she is not divorced. There is no dispute (among the scholars).” (Zaad al-Ma’aad, 5/217) And Allaah knows best. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 2523: Insinuating thoughts (waswaas) of divorce Question: Salamu Alaikum: My question pertains to divorce in Islam. I have been married for a year and early on in my marriage I had strong and constant thoughts about divorce. The 115

Jurisprudence and Islamic Rulings

divorce thoughts consisted of my repeating “I divorce you” on many occasions in my head. I have NEVER repeated these things out loud and they were only thoughts in my head. I no longer want to divorce my wife and would like to stay with her. Is it possible for divorce to be valid just by repeating the thought in your head? Is it haram for us to stay together? Please respond as soon as possible as this has been haunting me for the past year. Answer: Praise be to Allaah. In cases like this, the divorce is not valid, for two reasons: It is only in your mind, and has never been expressed either verbally or in writing. The divorce of a person who is afflicted with waswaas (insinuating thoughts from Shaytaan) is not valid because this is something that he has no control over, and it carries no weight in sharee’ah. And Allaah is the Source of Strength. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 2218: A man doesn’t want to live with his wife but doesn’t want to divorce her for the sake of the children Question: A man has in the past had some major problem with his 116

Transactions - Part 5

wife. Neither she, nor he want divorce as they have 3 children, yet he cannot live with her and has left the country. He would like to remarry in the new country of residence, but is afraid of the condition of equity of time between the two wives and that he will be called to account for it before Allah. His wife will not willingly relinquish her rights as she wants him to return to her, nor will she accept a second marriage... Is it halal for him to tell her that he will retain her as a wife only under the condition that she relinquish her rights to his time to a second wife? He does not want to oppress himself nor does he want to oppress her.. what are his options? Answer: Praise be to Allaah. If he has no interest in his present wife, there is nothing wrong with divorcing her and marrying another, but if he and she come to an agreement whereby she may remain his wife for the sake of the children, there is nothing wrong with this either. If he gives her the choice between divorce and giving up her rights to his time and his spending on her, in whole or in part, this is not oppression. Oppression is when he keeps her by force without giving her any of her rights whilst at the same time refusing to give her a divorce. The evidence (daleel) that the situation described above is permissible is to be found in the hadeeth narrated by Imaam al-Bukhaari from ‘Aa’ishah (may Allah be pleased with her), which comments on the aayah (interpretation of the meaning): “And if a woman fears cruelty or desertion on her husband’s part…” [al-Nisaa’ 4:128]. She said: “This was a woman who was married to a man who did not care for her, so he wanted to divorce her and marry someone else. (According to another report narrated by 117

Jurisprudence and Islamic Rulings

al-Bukhaari she said: He was a man who saw something he disliked in his wife, so he wanted to divorce her.) She said to him: ‘Keep me, do not divorce me. Marry someone else and I will absolve you of your obligation to spend on me and share your time with me.’ This is what Allaah referred to when He revealed the aayah (interpretation of the meaning): ‘… there is no sin on them both if they make terms of peace between themselves; and making peace is better…’ [al-Nisaa’ 4:128].” (Reported by alBukhaari, 4807) “This was a woman who was married to a man who did not care for her” means that he did not love her or want to treat her well or stay with her. “I will absolve you of your obligation towards me” means: leave me without divorcing me. Concerning this issue, Allaah revealed the words (interpretation of the meaning): “And if a woman fears cruelty or desertion on her husband’s part…” [alNisaa’ 4:128]. ‘Ali reported that this was revealed concerning a woman who is married to a man and does not want to leave him, so they come to an agreement that he will visit her every three or four days.” Al-Tirmidhi reported via Sammaak from ‘Ikrimah from Ibn ‘Abbaas that he said: “Sawdah was afraid that the Messenger of Allaah (peace and blessings of Allaah be upon him) would divorce her, so she said: ‘O Messenger of Allaah, do not divorce me; give my day to ‘Aa’ishah.’ So he did so. Then this aayah was revealed.” Al-Tirmidhi said: “(This is) hasan ghareeb.” I say: there is corroborating evidence in a hadeeth from ‘Aa’ishah narrated by al-Bukhaari and Muslim, without referring to the revelation of the aayah. (From Fath al-Baari). The hadeeth mentioned by al-Haafiz ibn Hijr (may Allaah have mercy on him) is in Sunan al-Tirmidhi, 2966, where it is reported that Ibn ‘Abbaas said: “Sawdah was afraid that the Prophet (peace and blessings of Allaah be upon 118

Transactions - Part 5

him) would divorce her, so she said: ‘Do not divorce me. Keep me and give my day to ‘Aa’ishah.’ So he did so, then Allaah revealed the aayah: ‘… there is no sin on them both if they make terms of peace between themselves; and making peace is better…’ [al-Nisaa’ 4:128]. So whatever they agreed upon was permissible.” It is as if the last sentence was the comment of Ibn ‘Abbaas. Abu ‘Iesa said: this is a hasan ghareeb hadeeth. Al-Mubaarakpoori said, commenting on this hadeeth: ‘Sawdah was afraid…’ This refers to Sawdah bint Zam’ah ibn Qays al-Qurashiyyah al-‘Aamiriyyah. The Messenger of Allaah (peace and blessings of Allaah be upon him) married her in Makkah after Khadeejah had died, and consummated the marriage there. The scholars agree that he consummated his marriage to her before he consummated his marriage to ‘Aa’ishah, and she migrated to Madeenah with him. She died at the end of the khilaafah of ‘Umar ibn al-Khattaab. ‘…was afraid that the Prophet (peace and blessings of Allaah be upon him) would divorce her, so she said…’ Al-Bukhaari and Muslim reported from ‘Aa’ishah that Sawdah bint Zam’ah gave her day to ‘Aa’ishah, so the Prophet (peace and blessings of Allaah be upon him) used to give ‘Aa’ishah her own day and that of Sawdah. AlHaafiz said in al-Fath: Abu Dawood reported this hadeeth (from ‘Aa’ishah): ‘The Messenger of Allaah (peace and blessings of Allaah be upon him) never used to prefer any of us over others in sharing his time (i.e., he was fair in dividing his nights among his wives, and each one of them had her allotted night). When Sawdah bint Zam’ah grew old and feared that the Messenger of Allaah (peace and blessings of Allaah be upon him) might divorce her, she said: ‘O Messenger of Allaah, my day is for ‘Aa’ishah,’ and he accepted this from her. Then concerning this and similar cases, the aayah was revealed (interpretation of 119

Jurisprudence and Islamic Rulings

the meaning): ‘And if a woman fears cruelty or desertion on her husband’s part…’ [al-Nisaa’ 4:128]. These reports agree that she feared divorce and so gave her day to ‘Aa’ishah. Then al-‘Allaamah al-Mubaraakpoori said: The aayah may be explained thus: ‘If a woman fears’ means if she expects. ‘Cruelty’ means that he spurns her by refusing to sleep with her or by spending less on her than he should, because he dislikes her and wants to marry someone more beautiful. ‘Desertion’ means that he turns his face away from her. ‘There is no sin on them both if they make terms of peace between themselves’ means with regard to the sharing of his time and his spending on her, i.e., he should still give her something in this regard (sharing time or spending) in order to preserve the relationship: if she accepts, this is OK, otherwise the husband must either give her her full rights or divorce her. ‘Making peace is better’ means better than separation, cruelty and desertion. Whatever they agree upon between themselves is permissible. (Tuhfat al-Ahwadi Sharh Jaami’ al-Tirmidhi). And Allaah knows best, May Allaah bless our Prophet Muhammad. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 2373: Giving talaaq (divorce) three times at once is bid’ah Question: Could you please let me know according to the Shafi mishep, if a man can give his wife Talaaq tree(3) times at once. 120

Transactions - Part 5

Answer: Praise be to Allaah. Giving talaaq (divorce) three times at once is bid’ah, and goes against the aayah (interpretation of the meaning): “… When you divorce women, divorce them at their ‘iddah (prescribed periods)…” [al-Talaaq 65:1]. If a Muslim wants to divorce his wife, he should divorce her according to the Sunnah, which is to give one talaaq at a time when his wife is taahir (not menstruating) and he has not yet had intercourse with her following her period, or when it is clear that she is pregnant. According to the Shaafi’i madhhab and the majority of other madhhabs, giving three talaaqs at once counts as three separate talaaqs and is irrevocable, and the couple cannot remarry until the woman has been married to and divorced from another man. Other scholars say that three talaaqs given at once count as only one talaaq. And Allaah knows best. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 488: Ruling on a Woman Asking for a Divorce from Her Husband Question: If a couple differs in their Islamic perceptions. One who grow up in the West and the other in the East. And they quarrel constantly and can’t come to an agreement. At what point is talaq considered? Is it wrong for a sister to ask for talaq? Will she be punished on the Day of Judgment? Does the Arsh of Ar-Rahman shake once talaq

121

Jurisprudence and Islamic Rulings

is asked for? This is what one sister, growing up the West is being told by her husband from the East. Jazak Allah khayr for your response. Answer: All Praises are Due to Allah The divorce of a Muslimah from her husband is an affair which is loathsome to Allah and not a praise worthy event. This is due to the problems and possible evils. However, if there is a situation in the marriage life taking place between the man and the women, due to a defect or defects in one or both of them, such problems of deen, bad character, sickness, or a defect such as being sterile or similar. Then out of the mercy of Allah, seeking divorce is permissible. In this case, it is okay and there is nothing prohibited in seeking a divorce. The thing which is prohibited is a wife seeking a divorce from her husband for no reason of the shariah. There is serious promise made for seeking a divorce without a valid reason. It is reported in the hadith of the Prophet (peace and blessings of Allah be upon him), “If a women asks her husband for a divorce, for no reason, then the smell of paradise is forbidden for her”. (At-Tirmidhi narrated it. He said this is a hasan hadith. Sunnah At-Tirmidhi #1187.) The hadith “marry and do not divorce for verily divorce causes the arsha (throne of Allah) to shake” is also forged and da’eef. (Al Jami As- Sagheer #2429) Allah knows best. 122

Transactions - Part 5

Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 45174: Ruling on divorce at a moment of anger Question: A Muslim woman says that her husband has often said, in moments of intense anger, “You are divorced.” What is the ruling on that, especially as they have children?. Answer: Praise be to Allaah. Shaykh Ibn Baaz (may Allaah have mercy on him) was asked about a man whose wife treats him badly and insults him, so he divorced her at a moment of anger. He replied: If you uttered the words of divorce at a moment of intense anger and without realizing it, and you could not control yourself, because of her bad words and insults etc., and you did that at a moment of intense anger and without realizing it, and she acknowledges that, or you have a witness of good character, then divorce has not taken place, because the shar’i evidence indicates that divorce does not take place if the words are spoken at a moment of intense anger – and if it is accompanied by not realizing what is happening then the ruling applies even more so. For example, Ahmad, Abu Dawood and Ibn Maajah narrated from ‘Aa’ishah (may Allaah be pleased with her) that the Prophet (peace and blessings of Allaah be upon him) said: “There is no divorce and no manumission in the event of ighlaaq.” The majority of scholars said that ighlaaq means compulsion or anger, i.e., intense anger. For his anger made him unaware of what he was saying, so he is like one who is unconscious, insane or drunk, 123

Jurisprudence and Islamic Rulings

because of the intensity of his anger. So divorce does not take place in this instance. If he does not realize what he is doing and cannot control his words or actions because of the intensity of his anger, then divorce does not take place. Anger may be of three types: 1 – When a person is angry and is no longer aware of what he is doing. This is likened to the insane, so divorce does not take place according to all scholars. 2 – Where a person is very angry but is still aware of what is going on, but his anger is so intense that it makes him say the words of divorce. In this case too, divorce does not take place according to the correct scholarly opinion. 3 – The ordinary type of anger which is not very intense. In this case, divorce takes place, according to all the scholars. From Fataawa al-Talaaq, pp. 19-21, compiled by Dr. ‘Abd-Allaah al-Tayyaar and Muhammad al-Moosa. What the Shaykh mentioned about the second type of anger is also the view favoured by Shaykh al-Islam Ibn Taymiyah and his student Ibn al-Qayyim (may Allaah have mercy on them both). Ibn al-Qayyim wrote an essay on that entitled Ighaathat al-Lahfaan fi Hukm Talaaq alGhadbaan, in which he said the following: Anger is of three types: 1 – That which is not so intense as to affect a person’s mind or rational thinking; he knows what he is saying and what he means. There is no dispute that in this case divorce, manumission and contracts are valid.

124

Transactions - Part 5

2 – Where his anger reaches such a limit that he no longer knows what he is doing or saying. There is no dispute that in this situation divorce does not take place. If his anger is so intense that he does not know what he is saying, there is no doubt that none of his words should be implemented in this case. The words of the mukallif (adult of sound mind) are only to be implemented if he knows what he is saying and what it means, and if the speaker really means that. 3 – The kind of anger that falls between the two categories mentioned above, where the anger goes beyond the ordinary level but not so far as to make him behave like a madman. This is an area of scholarly differences of opinion. The shar’i evidence indicates that divorce, manumission and contracts in such cases are not valid, and this is a kind of ighlaaq as the imams explained. From Mataalib Ooli al-Nuha, 5/323; see also Zaad alMa’aad, 5/215. The husband has to fear Allaah and avoid using the word of divorce (talaaq) so that this will not lead to the disintegration of his family. We advise husband and wife alike to fear Allaah and heed His limits, and to look at what the husband said to his wife in a fair manner: is this the ordinary kind of anger, which is the only case in which divorce can take place, and this is the third type in which divorce does take place according to scholarly consensus. They should be cautious and not transgress the limits of their religion, and they should not let the fact that they have children make them describe the husband’s anger at the time he spoke the words of divorce to the mufti as intense so as to get the fatwa they want, even though both parties know that this was not the case.

125

Jurisprudence and Islamic Rulings

Based on this, the fact that the couple have children together should motivate them to avoid using the words of divorce recklessly; it should not cause them to try to find a loophole in the shar’i rulings after divorce has taken place and look for a way out or seek concessions from the fuqaha’ with regard to that. We ask Allaah to bless us all with understanding of His religion and help us to venerate His laws. And Allaah knows best. Islam Q&A (www.islam-qa.com)

126

Transactions - Part 5

Chapter 2 Transactions Waiting Period of Widow or Divorcee 21398: ‘Iddah of a woman who did not know that her husband has died Question: My question is: there is a woman whose husband was working in a foreign country. The husband died and the wife did not learn that he had died until six months later. Does the wife have to observe ‘iddah in this case? What is the evidence?. Answer: Praise be to Allaah. The ‘iddah of a woman whose husband dies is considered to start from the moment of death, and depends on the woman’s situation. If she is pregnant, her ‘iddah lasts until she gives birth. If she is not pregnant and she is free, her ‘iddah lasts for four months and ten days. If she is a slave her ‘iddah lasts for two months and five days. If she did not learn of her husband’s death until six months later, then her ‘iddah ended before she came to know. Answered by: ‘Abd al-Rahmaan al-‘Ajlaan. (www.islam-qa.com) 5163: Does ‘iddah apply in the case of khula’? Question: does iddah imply when it is the woman who is seeking the divorce (khuli). 127

Jurisprudence and Islamic Rulings

Answer: Praise be to Allaah. 1 – Khula’ – in principle – can only occur at the request of the wife, and with the husband’s subsequent agreement to end the marriage. 2 – ‘Iddah is obligatory upon every woman who leaves her husband, or whose husband leaves her, whether the cause is talaaq (divorce), annulment of the marriage or the death of the husband, except when the divorce occurs before the marriage has been consummated, in which case the woman does not have to observe ‘iddah, because Allaah says (interpretation of the meaning): “O you who believe! When you marry believing women, and then divorce them before you have sexual intercourse with them, no ‘Iddah [divorce prescribed period] have you to count in respect of them” [al-Ahzaab 33:49] 3 – With regard to the ‘iddah following khula’, the correct scholarly view is that it is one menstrual cycle, as is indicated by the Sunnah. It was narrated from Ibn ‘Abbaas that the wife of Thaabit ibn Qays ended her marriage to her husband by means of khula’ at the time of the Prophet (peace and blessings of Allaah be upon him). The Prophet (peace and blessings of Allaah be upon him) commanded her to observe an ‘iddah of one menstrual cycle. (Narrated by al-Tirmidhi, 1185; Abu Dawood, 2229. Also narrated by al-Nasaa’i (3497) from the hadeeth of al-Rabee’ bint ‘Afra’. The two hadeeth were both classed as saheeh by Ibn alQayyim, as we shall see below). Ibn al-Qayyim (may Allaah have mercy on him) said: 128

Transactions - Part 5

In the fact that the Prophet (peace and blessings of Allaah be upon him) commanded the woman who ended her marriage to her husband by khula’ to observe an ‘iddah of one menstrual cycle, there is evidence for two rulings: The first is that she does not have to wait for three menstrual cycles, rather one menstrual cycle is sufficient. Just as this is clearly the Sunnah, it was also the view of Ameer al-Mu’mineen ‘Uthmaan ibn ‘Affaan, ‘Abd-Allaah ibn ‘Umar ibn al-Khattaab, al-Rabee’ bint Mu’awwadh and her paternal uncle, who was one of the greatest Sahaabah. We do not know of anyone who held a different opinion, as al-Layth ibn Sa’d narrated that Naafi’ the freed slave of Ibn ‘Umar heard al-Rabee’ bint Mu’awwadh ibn ‘Afra’ telling ‘Abd-Allaah ibn ‘Umar (may Allaah be pleased with him) that she had ended her marriage to her husband by khula’ at the time of ‘Uthmaan ibn ‘Affaan, and her paternal uncle had come to ‘Uthmaan ibn ‘Affaan and said, The daughter of Mu’awwadh ended her marriage to her husband by khula’ today, so should she move (from the marital home)? ‘Uthmaan said, She should move, and there is no inheritance between them, and she does not have to observe any ‘iddah, but she should not remarry until one menstrual cycle has passed, lest she be pregnant. ‘Abd-Allaah ibn ‘Umar said: and ‘Uthmaan was the best of us and the most knowledgeable. This view was also shared by Ishaaq ibn Raahawayh and Imaam Ahmad, according to one report narrated from him. It was also the view favoured by Shaykh al-Islam Ibn Taymiyah. Those who supported this view said: this is in accordance with the principles of sharee’ah. The ‘iddah (in the case of talaaq) was made three menstrual cycles in order to lengthen the time during which the husband may take back his wife, so that the husband will have enough time 129

Jurisprudence and Islamic Rulings

to rethink the matter and to be able to take his wife back during this time. But in the case of khula’ the wife is not going to go back and the purpose is simply to establish whether she is pregnant or not, so one menstrual cycle is sufficient. They said: this does not contradict the ruling that the ‘iddah for a woman divorced by talaaq is three months. In the case of divorce the ‘iddah is the same whether it is a final talaaq or a revocable talaaq. Zaad al-Ma’aad, 5/196, 197 Some scholars said that the ‘iddah for a woman who ends her marriage to her husband by khula’ is three menstrual cycles, as in the case of one who is divorced by talaaq, but this was expertly refuted by Imam Ibn al-Qayyim, who said: What indicates that khula’ is not the same as talaaq is the fact that in the case of a revocable talaaq after consummation of the marriage, there are specific rulings which are not applicable in the case of khula’. 1. That the husband has more right to take her back. 2. When the husband issues a talaaq, is it counted as one of three, and after the third it is not permissible for the wife to go back to him until she has been married to another man and that marriage has been consummated. 3. ‘Iddah in the case of talaaq is three menstrual cycles. So the ‘iddah in the case of khula’ is what is indicated by the Sunnah, namely one menstrual cycle. And Allaah knows best. Islam Q&A (www.islam-qa.com)

130

Transactions - Part 5

14038: Can he take his wife back after her ‘iddah has ended? Question:

Can a man and a woman go back together if they have been seperated for a long time.They were husband and wife Answer: Praise be to Allaah. If a man divorces his wife with the first or second talaaq, once her ‘iddah is over she is divorced and becomes a “stranger” (non-mahram) to him; she cannot go back to him except with a new marriage contract which fulfils all the conditions set out in sharee’ah (see Question no. 2127). But if he divorces his wife with the third talaaq, then she becomes haraam to her first husband until she has married a second husband in a genuine marriage which is consummated. The Qur’aanic evidence for that is the aayah (interpretation of the meaning): “The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness… And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband” [al-Baqarah 2:229-230] The last divorce refers to the third divorce, according to all the scholars.

131

Jurisprudence and Islamic Rulings

The evidence from the Sunnah is the hadeeth narrated by ‘Urwah ibn al-Zubayr, according to which ‘Aa’ishah told him that the wife of Rifaa’ah al-Qurazi came to the Messenger of Allaah (peace and blessings of Allaah be upon him) and said, “O Messenger of Allaah, Rifaa’ah divorced me thrice, then I was married to ‘Abd alRahmaan ibn al-Zubayr al-Qurazi, but he has nothing with him except something like this fringe. The Messenger of Allaah (peace and blessings of Allaah be upon him) said, “Perhaps you want to go back to Rifaa’ah? No, (it is not possible), unless and until you enjoy the sexual relation with him (‘Abd al-Rahmaan), and he enjoys the sexual relation with you.” (Narrated by al-Bukhaari, 4856; Muslim, 2587) The phrase “divorced me three times” means that this was the divorce which meant that she was no longer married to him, which is the third talaaq. The Prophet’s words “until you enjoy the sexual relation with him (‘Abd al-Rahmaan), and he enjoys the sexual relation with you” refer to intercourse. Al-Nawawi said: “This hadeeth indicates that the woman who has been divorced by a third talaaq is not permissible to the man who has divorced her until she has been married by another husband, who has intercourse with her then separates from her, and she completes her ‘iddah. Merely drawing up the marriage contract with her does not make her permissible to the first husband. This is the view of all the scholars among the Sahaabah, Taabi’een and those who came after them. Sharh Muslim, 10/3 And Allaah knows bets. May Allaah bless our Prophet Muhammad. 132

Transactions - Part 5

Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 10670: What a recently-widowed woman is not allowed to do Question: My husband has died. What should I do? What are the things that I am not allowed to do? Answer: Praise be to Allaah. It is narrated in the hadeeth that a recently widowed woman is not allowed to do five things, and that she is required to do five things. 1 – She should stay in her house where she was living when her husband died; this is the place where she should stay until the end of her ‘iddah, which lasts for four months and ten days, unless she is pregnant, in which case her ‘iddah ends when she gives birth, as Allaah says (interpretation of the meaning): “And for those who are pregnant (whether they are divorced or their husbands are dead), their ‘Iddah (prescribed period) is until they lay down their burden” [al-Talaaq 65:4] She should not leave the house except in case of need or necessity, such as going to the hospital if she is sick or to buy things she needs from the marketplace such as food etc., if she does not have someone with her who can do 133

Jurisprudence and Islamic Rulings

that. If the house is destroyed, then she should move elsewhere, or if she does not have anyone to keep her company and she fears for her safety, then it is OK for her to leave if there is a need to do so. 2 – She should not wear beautiful clothes, yellow, red, etc. Rather she should wear clothes that are not beautiful, whether they are black or green, etc. What matters is that the clothes should not be beautiful, as this is the command of the Prophet SAWS (peace and blessings of Allaah be upon him). 3 – She should avoid wearing jewellery of gold, silver, diamonds, pearls and the like, whether that is necklaces, bracelets or rings, etc., until her ‘iddah is over. 4 – She should avoid wearing perfume; she should avoid perfuming herself with bukhoor (incense) or any other kind of perfume, except when she purifies herself following her period, in which case she may perfume herself with a little bukhoor. 5 – She should avoid kohl; she may not apply kohl or any similar kind of cosmetic that is used on the face, the kind of cosmetic that may attract people to her. But with regard to regular beautification by using soap and water, that is OK. But the kohl which is used to make the eyes look beautiful and other kinds of cosmetics which some women use on their faces. This should not be done. These are the five things which must be taken care of in the case of a woman whose husband dies. But with regard to what some of the common people think and have fabricated, that a recently-widowed woman should not speak to anyone or speak on the telephone, or that she should take a bath no more than once a week, or that she should not walk barefoot in the house, or go 134

Transactions - Part 5

outside in the moonlight, and other similar myths, there is no basis for these things. She may walk in her house barefoot or wearing shoes; she may do what she needs to in her house, cooking food for herself and her guests; she may walk in the moonlight in the courtyard and garden of her house; she may take a bath whenever she wants; she may speak to whomever she wants in a manner that is not suspicious; she may shake hands with other women and with her mahrams, but not with non-mahrams; she may take off her khimaar (head cover) if there are no nonmahrams present. But she should not use henna or saffron or perfume, either on her clothes or in coffee, because saffron is a kind of perfume. No one should propose marriage to her, but it is OK to hint, but clearly proposing marriage is not allowed. And Allaah is the Source of help. A fatwa of Shaykh Ibn Baaz, from Fataawa Islamiyyah, vol. 3, p. 315-316 . For more information see al-Imdaad bi Ahkaam al-Ihdaad by Fayhaan al-Mutayri; Ahkaam al-Ihdaad by Khaalid al-Muslih . Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 8867: Her husband died during her ‘iddah from her final divorce; does she have to observe the #145;iddah of one who has been widowed? Question: Her husband died in a car accident during her ‘iddah following her final divorce (he had divorced her with the third talaaq, and during this ‘iddah he died in that accident). How long should she observe the ‘iddah? 135

Jurisprudence and Islamic Rulings

Answer: Praise be to Allaah. We put this question to Shaykh Muhammad ibn Saalih al-‘Uthaymeen, may Allaah preserve him, who answered as follows: She should complete the ‘iddah of divorce. Question: Does she also have to observe the ‘iddah of one who has been widowed? Answer: No, she does not have to do that, because the marital relationship ended with the final talaaq. And Allaah knows best. Shaykh Muhammad ibn Saalih al-‘Uthaymeen (www.islam-qa.com) 10833: She apostatized and married a Christian; now she has returned to Islam and has left that Christian man – how long is her ‘iddah? Question: She apostatized and married a Christian; now she has returned to Islam and has left him. How long will her ‘iddah be before she can marry someone else? Answer: Praise be to Allaah. 136

Transactions - Part 5

We put this question to Shaykh Muhammad ibn Saalih al-‘Uthaymeen, may Allaah preserve him, who responded by asking: “Did he have intercourse with her?” (We said:), Yes, he had intercourse with her. His response: (Her ‘iddah) is one menstrual cycle – according to the more correct view. It was also said that she should wait for three menstrual cycles, but the more correct view is that her ‘iddah is one menstrual cycle, because her marriage to that Christian was valid at the time when she was an apostate. And Allaah knows best. Shaykh Muhammad ibn Saalih al-‘Uthaymeen (www.islam-qa.com) 10426: She became Muslim after committing zinaa; does she have to wait (‘iddah) before getting married? Question: If a sister has just accepted Islaam, but before that she did have sexual relations with a “boyfriend”, then if she wants to marry once she has entered into Islaam what is her situation. In other words, she had sex before becoming Muslimah, then after that she wants to marry; is there a special waiting period for her since she is not certain whether or not she got pregnant after having sex while still a kaafirah? Answer: Praise be to Allaah. 137

Jurisprudence and Islamic Rulings

The following question was presented to Shaykh Muhammad ibn Saalih al-‘Uthaymeen: A woman is asking a question; she says that she has become Muslim but she had a haraam relationship with a man. Should she wait (observe ‘iddah) before she gets married, or not? He replied, may Allaah preserve him: One menstrual cycle is sufficient. And Allaah knows best. Shaykh Muhammad ibn Saalih al-‘Uthaymeen: (www.islam-qa.com) 6240: Should she wait out her ‘iddah in the place where her husband died, or go back to her homeland? Question: My question is regarding my mother’s Iddah. My parents were visiting the United States, my father got very sick and died there. My mother is still in the US staying at one of my cousin’s home , my question is that, do my mother has to spent the Iddah period in US at my cousin’s home where my parents were staying or she can return back to her own home in Pakistan. Returning home for my mother is also very important because of many issues in Pakistan like property etc in which her presence for various factors is very important. I would be very grateful if you would answer this question in the light of Islamic Laws. Thank you. Answer: Praise be to Allaah. 138

Transactions - Part 5

The scholars differed as to whether the woman in ‘iddah following her husband’s death has to stay in her house. There are two views, the more famous and stronger of which is that she has to stay in the marital home. This is the view of the majority of scholars, including the four imaams. They used as their evidence for this ruling the Sunnah as narrated in the Hadeeth of Faree’ah bint Maalik (may Allaah be pleased with her) who said that she came to the Prophet (peace and blessings of Allaah be upon him) and asked him whether she could go back to her family of Banu Khudrah. Her husband had set out in pursuit of some slaves of his who had run away, and when he caught up with them at the edge of al-Qadoom they had killed him. She asked the Messenger of Allaah (peace and blessings of Allaah be upon him) to let her go back to her family because her husband had not left her in a house that he owned. She narrated: “The Messenger of Allaah (peace and blessings of Allaah be upon him) said ‘Yes’, so I walked away until I was by the apartment, or in the mosque, then he called me – or commanded me – and I came back. I told him the story again about what had happened to my husband, and he said, ‘Stay in your house until the appointed time [i.e., until your ‘iddah is over].’” She said: “So I spent my ‘iddah there, four months and ten days. When ‘Uthmaan was the khaleefah, he sent word to me and asked me about that, so I told him and he followed it and ruled in accordance with it.” It was narrated by Abu Dawood, al-Nisaa’i, al-Tirmidhi and Ibn Maajah, and classed as saheeh by al-Tirmidhi, Ibn Hibbaan, al-Haakim, al-Dhahabi, Ibn al-Qayyim and others. Ibn al-Qayyim (may Allaah have mercy on him) said: “There is no reason to reject this clear saheeh Sunnah 139

Jurisprudence and Islamic Rulings

which ‘Uthmaan ibn ‘Affaan and other great Sahaabah accepted.” (Zaad al-Za’aad, 5/691) Note: A woman who is in ‘iddah could be faced with an emergency such as the fear of the house collapsing, a flood or an enemy, or she could feel lonely, or she may be living among immoral people, or the heirs may want to make her leave the house, or by staying she may lose her children or wealth… etc. In such cases it is permissible for her to move wherever she wishes, and she does not have to move to the nearest place. This is the view of the majority of scholars among the Hanafis, Hanbalis and Maalikis. This is on the condition that she can still adhere to the rulings of ‘iddah in the new home as she did in the previous home. If a woman is able to manage her affairs from the marital home, she has no reason to move. For example, she can delegate a trustworthy person to follow up the inheritance or property. If your mother is able to do her ‘iddah in the house in which she was living with her husband when he died, then she should stay there. And Allaah knows best. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 5288: Ruling on a woman whose husband has disappeared Question: does being abandond for nine months by your husband neither seeing or knowing his were abouts justify a Khuli divorce, and if so does she have to wait the Iddah before remarrying?. 140

Transactions - Part 5

Answer: Praise be to Allaah. If what is meant in the question is that this woman has had no news of her husband, i.e., he has vanished, then this is an issue which the fuqahaa’ (may Allaah have mercy on him) called “a woman whose husband has disappeared”, meaning that there is no longer any news of him. The fuqahaa’ (may Allaah have mercy on him) have many views on how long a woman should wait until her husband may be presumed dead. According to the most correct scholarly view, the determination of this period should be left to the discretion of the judge, and it may vary according to the times and circumstances. The judge should use his best judgement (ijtihaad) to determine a time limit after which it may be assumed that the husband is dead, and when that time has passed he should issue a ruling to that effect. Then the woman should observe the ‘iddah of one whose husband has died, i.e., four months and ten days, after which she is free to remarry. If she knows where he is and that he has abandoned her for this length of time, then the ruling is that of a woman whose husband has taken an oath not to have sexual relations with his wife [see al-Baqarah 2:226]. So the woman or her wali (guardian) should write to him, or the matter may be referred to the judge, so that the husband may be forced to return to her. If he refuses then the judge can decree that she is divorced or the marriage is annulled. And Allaah knows best. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 141

Jurisprudence and Islamic Rulings

4706: What Must the Mourning Widow Abide By Question: What are the laws by which the widow whose husband had just died must abide by? Answer: Praise be to Allaah. The Hadith states what a mourning widow is prohibited from doing and what she is requested to do. First, she must remain in her house in which she was living when her husband died. She remains therein until her iddah (mourning period) comes to an end. This is four months and ten days. Unless she is pregnant, wherein her mourning period ends when she gives birth. Allah says in the Quran, “For those who are pregnant, their waiting period is until they deliver” (al-Talaq 4). She does not leave the house except due to need or necessity, such as visiting the hospital due to illness, buying what she is in need of from the market, such as food or other items, if she cannot find others to do such for her. Similarly, if the house is destroyed, she leaves it for another house. Finally, if she does not find anyone who she knows close to her and she fears for her safety, she may move due to that need. Second, she may not wear any kind of beautiful clothing, either yellow, green or other. She must wear clothing which is not beautiful or attractive, regardless of whether it be black, green or otherwise. The important aspect is 142

Transactions - Part 5

that it is not beautiful or attractive. This is what the Prophet (peace be upon him) ordered. Third, she must not wear jewelry, either gold, silver, diamonds, pearls or anything of that nature. This is regardless if it be bracelets, chains or rings. She may not wear anything of this nature until her mourning period is over. Fourth, she must refrain from using perfume. She cannot perfume herself with either incense or any other kind of items that make the body smell good. The only exception to this is when she cleanses herself after her period. In that case, there is no harm if she applies some kind of incense. Fifth, she should not apply kohl. She can neither use kohl nor anything similar to kohl which is a beautification for the face, a beautification that may be considered something that attracts people. As for the normal beautification of using water and soap, there is nothing wrong with that. But the kohl which is a beautification of the eyes and other similar items that woman put on their faces are not to be used. These are the five items that a woman must attend to when her husband dies. However, there are many other acts that the general masses believe or have fabricated concerning a mourning woman. For example, they say that she cannot talk to anyone, she may not talk on the phone, she can only take a shower once a week, she cannot walk barefoot in her house, she cannot go out under the light of the moon, and other superstitions that are simply false. There is no basis for any of these. She may walk barefoot or with shoes in her house. She fulfills her needs in the house, such as cooking her food and the food of her guests. She may go out in the 143

Jurisprudence and Islamic Rulings

light of the moon on her roof 1 or in her garden. She may wash herself whenever she wishes. She may speak to anyone she wishes as long as it is not suspicious speech. She may shake hands with women and men she is related to— as for those men she is not related to, she may not shake their hands. She may remove her head scarf if she is not in the presence of men she is not related to. However, she should not use henna or saffron either on her clothing or in her coffee. This is because saffron is a kind of perfume and it is not allowed for her to perfume herself. She cannot be proposed to. One may indirectly make a statement intent to her but a clear proposal is not allowed. Shaikh ibn Baz (www.islam-qa.com) 5217: how a woman who is previously married should get married Question: I am wondering how a woman who is previously married should get married, i.e. how does she find a husband, does she require a wali, how does she meet the husband-to-be and when in the process. Can he see her face and hair and when. Please show all proofs using Qur’an and Sunnah JazakAllahkhairun Please tell me who is giving this fatawa and their islamic Background Answer: Praise be to Allaah.

144

Transactions - Part 5

The case of a woman getting married again is something that God has predestinated and is a success granted by Him. This matter could be fulfilled by: (Doa’a) praying to Allah to provide her with another husband. By the guide of charitable people for a suitable man. By one of her female friends who knows her status and mentions her to one of her relatives, also this could be the fruit of philanthropic project for achieving marriage relations considering the state of the man and the woman and what is suitable for every one and is controlled by trustworthy faithful people. And as for the guardian, it is a must no matter the woman has been married before or not. The prophet (peace be upon him) said: “Any woman who gets married without the permission of her guardian, her marriage is false, her marriage is false, her marriage is false.”[Narrated by Al Termithy # 1102, Abou Dawood, Ibn Maga & El Albani said that it is authentic in his book “Sahih Al Gami’a” # 2709 ]. It is preferable for the person proposing (for the first time) to look at the woman he is proposing to because the prophet (peace be upon him) said: “Go and look at her…” [Narrated by Muslim # 1424]. And for what Al Nasa’ee narrated: Al Mugira Ibn Sho’ba said: “Someone proposed to a woman at the time of the prophet (peace be upon him) so the prophet asked him: (Did you look at her?) He said no. He said: (look at her, by doing this it will be more likely to have a harmonious marriage with everlasting love”.[Narrated by Al Nasa’ee & others, El Albani said that it is authentic in “Sahih Al Gami’a # 859”]. Most of the scholars agreed that the man proposing for marriage is allowed to look at the woman’s face as it is 145

Jurisprudence and Islamic Rulings

the place that gathers all the charms, and her hands (their face and back), i.e. she should appear in the same state as in her prayers. This should be without staying alone with each other in a private place. And without touching one another. He may look, in their meeting, at her more then one time as long as he needs this, until he decides if he’s going to marry her or not. [Mawsua’a Al Figh 19/199]. (www.islam-qa.com) 2628: Rulings on the mourning of a woman whose husband has died Question: What are the regulations concerning the idda of a widow? I have been told that she cannot leave her husband’s house at all during the 4 months and 10 days, but other say she must only be careful to leave only for true needs and must never sleep away from her husband’s house during this time. I have also been told that she cannot wash or comb her hair. The latter especially seems contrary to Islam regarding cleanliness. A detailed response would be greatly appreciated. Jazakum Allahu khayran Answer: Praise be to Allaah. Allaah says (interpretation of the meaning): 146

Transactions - Part 5

“And those of you who die and leave wives behind them, they (the wives) shall wait (as regards their marriage) for four months and ten days, then when they have fulfilled their term, there is no sin on you if they (the wives) dispose of themselves in a just and honourable manner (i.e., they can marry). And Allaah is Well-Acquainted with what you do.” [al-Baqarah 2:234] “And those of you who die and leave behind wives should bequeath for their wives a year’s maintenance and residence without turning them out, but if they (wives) leave, there is no sin on you for that which they do of themselves, provided it is honourable (e.g., lawful marriage). And Allaah is All-Mighty, All-Wise.” [al-Baqarah 2:240] Umm ‘Atiyah reported that the Messenger of Allaah (peace and blessings of Allaah be upon him) said: “No woman should mourn for a dead person for more than three days, except for a husband, (in which case the period of mourning is) four months and ten days. She should not wear any coloured clothes, only simple dress. She should not apply kohl to her eyes, or use perfume, except for a little qust or izfaar (types of perfume), when she cleans herself after finishing her period.” (Reported by Muslim, 2739). Umm Habeebah bint Abi Sufyaan reported that when the news of her father’s death reached her, she called for some perfume and wiped it on her forearms, and said: “I do not need it, but I heard the Prophet (peace and blessings of Allaah be upon him) say: ‘It is not permitted for a woman who believes in Allaah and the Last Day to mourn for any dead person for more than three days, except for a husband, (in which case the period of mourning is) four months and ten days. (Reported by al-Bukhaari, 4926).

147

Jurisprudence and Islamic Rulings

Umm Salamah, the wife of the Prophet (peace and blessings of Allaah be upon him) reported that the Prophet (peace and blessings of Allaah be upon him) said: “The woman whose husband has (recently) died should not wear clothes dyed with safflower or torn clothes, or dye her hair, or use kohl.” (Reported by al-Nisaa’i, 3479, and others). Zaynab bint Ka’b ibn ‘Ujrah reported that al-Furay’ah bint Maalik ibn Sinaan, the sister of Abu Sa’eed al-Khudri, told her that she came to the Messenger of Allaah (peace and blessings of Allaah be upon him) and asked him whether she should go back to her people among Banu Khudrah. Her husband had gone out in pursuit of some rebellious slaves of his, and when he caught up with them at the edge of al-Qadoom, they killed him. She said: “I asked the Messenger of Allaah (peace and blessings of Allaah be upon him) whether I should go back to my family, because my husband had not left me a place to live that belonged to him, or any money for provisions. The Messenger of Allaah (peace and blessings of Allaah be upon him) said yes, so I started to leave, and I had reached the hujurah (room) or the mosque, when the Messenger of Allaah (peace and blessings of Allaah be upon him) called me or told someone to call me. So I came back, and he asked me, ‘What did you say?’ I repeated the story I had told him about my husband. He said: ‘Stay in your house for the specified length of time.’ So I spent my ‘iddah there, four months and ten days. At the time of ‘Uthmaan, he sent word to me asking about this, so I told him, and he followed what I said and judged in accordance with it.” Muhammad ibn Bashshaar told us that Yahyaa ibn Sa’eed informed us that Sa’d ibn Ishaaq ibn Ka’b ibn ‘Ujrah informed us of something similar. Reported by al-Tirmidhi, who said: This is a saheeh hasan hadeeth. The majority of scholars among the Companions 148

Transactions - Part 5

of the Prophet (peace and blessings of Allaah be upon him) and others followed this hadeeth and did not allow a widow to move out of her husband’s home until her ‘iddah was over. (Sunan al-Tirmidhi, 1125). On the basis of the texts quoted above, the scholars have defined the rules governing widows and described how the widow’s mourning should affect her life. These rules may be summed up as follows: It is forbidden for the recently-widowed woman to use perfume, whether on her body or on her clothes It is forbidden for the recently-widowed woman to adorn herself with things like henna or facial make-up, or to use kohl unnecessarily, or to use anything else that may make her beautiful and attractive to others. It is forbidden for the recently-widowed woman to wear attractive clothes, such as clothes dyed with safflower or saffron, or other types of red dyes and colours that are used for adornment. It is forbidden for the recently-widowed woman to wear jewellery. It is forbidden for the recently-widowed woman to spend the night outside her own home, meaning the home of her deceased husband, except for some Islamically legitimate reason, such as her being afraid for her own safety, or being evicted by the landlord of rented premises, etc. If a recently-widowed woman needs to go out for medical treatment, to attend legal proceedings in court, to take exams in school, or to go shopping when she has no-one who can do this for her, then she should do these things during the day, so long as she comes back home to her husband’s house before maghrib (sunset). 149

Jurisprudence and Islamic Rulings

She is forbidden to marry or draw up a marriage contract; even engagement is forbidden, unless it is merely hinted at and not stated clearly. From the above, it is clear that Islam gives the husband immense rights. The wife should give up wearing adornments and perfume, and should stay in her husband’s home during this period because of those rights. These rules also pay attention to her psychological state at this time when she has lost her support. Even though these rules are so clear, many people have still fallen prey to many different kinds of bid’ah when it comes to mourning, so they forbid a woman to do things that are not forbidden in Islam, and they fabricate lies and introduce bid’ah into the religion of Allaah. Shaykh ‘Abd al-‘Azeez ibn Baaz said: “Some people may think and imagine that a recently widowed woman should not speak to anyone, or speak to anyone on the telephone, or have a bath more than once a week, or walk barefoot in her house, or go outside in the moonlight, or other such nonsense which has no basis. But in fact she is allowed to walk barefoot or with shoes in her house, to do whatever she needs to in her house, to cook food for herself and her guests, to walk in the moonlight on the roof or in the garden of her house, to take a bath whenever she wants, to speak to whomever she wants so long as it is decent talk, to shake hands with other women and with her mahram relatives (close relatives such as father, brother, etc.) – but not with nonmahrams, and to remove her headcovering so long as there are no non-mahrams present. She should not use henna, saffron or perfume, and she is not allowed to get engaged – a hint is permissible but not a clear statement. And Allaah is the source of strength.” (Fataawaa Islamiyah, 3/316) 150

Transactions - Part 5

Shaykh ‘Abd-Allaah ibn Jibreen said: “Wearing black to mourn the deceased is a form of bid’ah, and the wives of the deceased only need to avoid fancy clothes, adornment, jewellery, makeup and perfume during the mourning period. Neglecting regular work during the mourning period is also a form of bid’ah. The recently widowed woman should still take care of cooking, cleaning, washing dishes, laundry, etc., and there is no sin invloved in doing so. And Allaah knows best.” (al-Lu’lu’ alMakeen, 39). Shaykh Muhammad ibn Saalih al-‘Uthaymeen said: “Wearing special clothes to accept condolences is a form of bid’ah, in our opinion, because it could indicate that one is discontent with the decree of Allaah, may He be glorified.” (Fataawaa al-Ta’ziyah, 38). He also said: “Wearing black as a sign of mourning is a false symbol that has no basis. At times of bereavement a person should do what is taught by Islam, which is to say: ‘Innaa Lillaahi wa innaa ilayhi raaji’oon. Allaahumma’jurni fi museebati wa’khluf li khayran minhaa (To Allaah we belong and unto Him is our return. O Allah, recompense me for my affliction and replace it for me with something better).’ As regards wearing some special clothing, such as wearing black and so on, this has no basis, and it is false and reprehensible conduct.” (Fataawa Islamiyah, 3/313). And Allaah knows best. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islamqa.com) 151

Jurisprudence and Islamic Rulings

311: Intercourse with wife during ‘Iddah Question: Is it permitted to have intercourse with one’s wife during the ‘iddah of divorce (talaaq)? Answer: Praise be to Allaah. If a man has divorced his wife (talaaq) for the first or second time, she spends her ‘iddah (waiting period) in his house and stays with him because she is still his wife and under his guardianship. If he wants to have intercourse with her, then according to some scholars if he does so at that time (i.e. the time of ‘iddah), this means that he has taken her back and her ‘iddah is over. Other scholars say that he should say words that indicate that he has taken her back (e.g., “I take you back” or “I take so-and-so back”) before he has intercourse with her, and that there should be two Muslim witnesses to these words. This puts an end to the ‘iddah, and he may then have intercourse with her whenever he wishes. This (the second opinion) is the soundest course to take if he wishes to have intercourse with her. But in the case of the third talaaq, she does not stay with him during her ‘iddah. She leaves his house and is no longer permissible for him (i.e. he cannot have intercourse with her) unless she has married another man; if he divorces her, then she is permitted to return to her first husband in a new marriage. And Allaah knows best. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islamqa.com) 152

Transactions - Part 5

31: Different types and periods of ‘idda (waiting period) Question: What are the different types of ‘ idda (waiting period) and what are their extents? Answer: According to the Islamic shari’a, the ‘idda is a waiting period with certain exigencies required of a woman when the appropriate condition exists—either divorce or death (of her husband). As for divorce, the ‘idda for a pregnant woman is until she delivers her child, and for one who still menstruates, it is three menstrual cycles, whereas for one who is either too young or too old to menstruate, it is three months. As for the widow whose husband has passed away, if she is pregnant then her ‘idda is until she delivers her child; otherwise, it is four months and ten days. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 145: Husband and wife must stay in same house during iddah Question: Is it permissable for the husband to move out of the home during the iddah of his wife? For what period of time is he required to maintain her after he pronounces divorce? If he abandons the home and does not maintain her, what does the Sharee’ah say about such actions? 153

Jurisprudence and Islamic Rulings

Answer: All Praise is due to Allah the Almighty. It is mandatory that a divorced woman stay in her husband’s home during the period of iddah (specifically after the first and second divorce). It is not permissible for her husband to force her out of the home. The verse from the Qur’an which asserts this is al-Talaaq (65:1), (interpretation of the meaning): “... and do not force them out of their homes, nor shall they (themselves) leave, except in the case where they are guilty of open illegal sexual intercourse...” The husband is also obliged to provide for her during this period of iddah, as she is still under his guardianship (‘isma). It is permissible for the woman to beautify herself for her husband during the iddah. In fact, one of the reasons for iddah is to provide a period of reflection and contemplation, so each party may consider the consequences and review the decisions and circumstances, so as to provide a chance for them to get back together. If the husband abandons the house or forces the wife out, then the reasons for which Allah has ordained this period have been missed. Thus, it is incumbent upon the husband to beware of this, as he would be disobeying a command from Allah. There is nothing wrong with her going out of the house for visits, etc., with his permission, just as before her divorce. Regarding the length of the iddah, please refer to question #31. 154

Transactions - Part 5

May Allah guide us to the right path. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com)

155

Jurisprudence and Islamic Rulings

Chapter 3 Transactions Breast Feeding 47721: The limits within which a married couple may enjoy intimacy with one another, and the ruling on a man suckling from his wife Question: Is it permissible for a man to suck on his wife’s breasts during intercourse?. Answer: Praise be to Allaah. The husband may enjoy intimacy with his wife in whatever way he wishes; the only thing that is forbidden is anal intercourse and intercourse during the wife’s menstrual period or nifaas (post-partum bleeding). Apart from that, he may enjoy his wife in whatever way he wants, such as kissing, touching, looking, etc. Even if he sucks on her nipples, this comes under the heading of the intimacy that is permissible, and it cannot be said that the milk has any effect on him, because if an adult breastfeeds, it does not have any effect of making him a mahram. Rather the breastfeeding that has this effect is that which takes place during the first two years of life. The scholars of the Standing Committee said: It is permissible for a husband to enjoy all of his wife’s 156

Transactions - Part 5

body, apart from the back passage and intercourse during the wife’s menstrual period or nifaas (post-partum bleeding), or when in ihraam for Hajj or ‘Umrah, until he has exited ihraam completely. Shaykh ‘Abd al-‘Azeez ibn Baaz, Shaykh ‘Abd-Allaah ibn Qa’ood. Fataawa al-Lajnah al-Daa’imah, 19/351, 352. The scholars of the Standing Committee said: It is permissible for the husband to suck his wife’s breasts, and if any milk reaches his stomach it does not have the effect of making him a mahram. Shaykh ‘Abd al-‘Azeez ibn Baaz, Shaykh ‘Abd alRazzaaq ‘Afeefi, Shaykh ‘Abd-Allaah al-Ghadyaan, Shaykh ‘Abd-Allaah ibn Qa’ood. Shaykh Muhammad ibn Saalih al-‘Uthaymeen said: Breastfeeding by an adult does not have the effect of making him a mahram, because the breastfeeding that has that effect is five breastfeedings or more within the first two years of life before weaning. Breastfeeding by an adult does not have that effect. Based on this, if we assume that someone breastfed from his wife or drank her milk, he cannot become a son to her. Fataawa Islamiyyah, 3/338. With regard to it being permissible to enjoy anything concerning which there is no prohibition, there follow some of the views of the scholars: Ibn Qudaamah said: There is nothing wrong with enjoying the area between the buttocks without any penetration, because what is 157

Jurisprudence and Islamic Rulings

forbidden is the back passage, which is mentioned specifically, which is forbidden because of the filth, and that is specific to the back passage, therefore it expressly forbidden. Al-Mughni, 7/226. Al-Kasaani said: Among the saheeh rulings on marriage is that it is permissible to look at and touch every part of her from head to foot when she is alive, because intercourse goes beyond looking and touching, so it is more appropriate that touching and looking should be permitted. Badaa’i’ al-Sanaa’i’, 2/231 Ibn ‘Aabideen said: Abu Yoosuf asked Abu Haneefah about a man who touches his wife’s private part and she touches his to stimulate arousal – did he see anything wrong with that? He said: No, and I hope that the reward will be greater. Radd al-Muhtaar, 6/367. The Prophet (peace and blessings of Allaah be upon him) stated that this is permissible when he forbade intercourse in the vagina with a menstruating woman, but he permitted all other parts of her body. So it is more obvious that it is permissible at times other than menstruation. Shaykh Muhammad ibn Saalih al-‘Uthaymeen (may Allaah have mercy on him) said: The words “He may enjoy everything else of her apart from that” means that the man may enjoy every part of the menstruating woman apart from the vagina. It is permissible to enjoy what is above and below the 158

Transactions - Part 5

waist wrapper (izaar), but the woman should be wrapped in a waist wrapper, because the Prophet (peace and blessings of Allaah be upon him) used to tell ‘Aa’ishah to wrap herself in a waist-wrapper when she was menstruating, then he would be intimate with her. He told her to do that lest he saw something that he disliked, namely the menstrual blood. But if the husband wants to enjoy the area between the thighs, for example, there is nothing wrong with that. If it is said: What do you say about the words of the Prophet (peace and blessings of Allaah be upon him) when he was asked what part of his wife is permissible for a man when she is menstruating and he said, “You have that which is above the waist-wrapper” and this indicates that one may only enjoy that which is above the waistwrapper? The answer is as follows: 1 – That is in order to be on the safe side and to avoid that which is forbidden. 2 – It may vary according to circumstances. The words of the Prophet (peace and blessings of Allaah be upon him), “Do everything apart from intercourse” may be taken as being addressed to one who can control himself, and the words, “You have that which is above the waist-wrapper” may be taken as being addressed to one who cannot control himself, either because his religious commitment is too weak or his desire is too strong. Al-Sharh al-Mumti’, 1/417. And Allaah knows best. Islam Q&A (www.islam-qa.com) 159

Jurisprudence and Islamic Rulings

13534: A Muslim woman may breastfeed a Christian child Question: Can a Muslim woman breastfeed a Christian child? And can a Christian woman breastfeed a Muslim child? What is the Islamic ruling on this child if breastfeeding takes place?. Answer: Praise be to Allaah. It is permissible for a Muslim woman to breastfeed a Christian child and it is permissible for a Christian woman to breastfeed a Muslim child, because the basic principle is that that is permitted, and there is no evidence to the contrary. Rather that is a form of kind treatment and Allaah has decreed kind treatment in all things. It is proven that the Prophet (peace and blessings of Allaah be upon him) said: “In every living being there is reward.” Secondly: if breastfeeding takes place, then the Islamic ruling on each of them is not altered by this breastfeeding. Whoever was a Muslim before breastfeeding remains a Muslim afterwards and whoever was a Christian remains a Christian. May Allaah send blessings and peace upon our Prophet Muhammad and his family and companions. Islam Q&A (www.islam-qa.com) 45620: Do her children from breastfeeding have any relationship with her second husband? Question: A boy was breastfed by a woman along with her own 160

Transactions - Part 5

son, then this woman got divorced and married another man, and had several sons and daughters. Her first husband married another woman and had several sons and daughters. My question is: I hope that you can tell me who are those who are regarded as the brothers and sisters of this child through breastfeeding – are they the sons and daughters of that woman through breastfeeding or the sons and daughters of the man? Please note that this woman says that she breastfed this boy for several days and her own son nursed from one breast and this boy nursed from the other. Answer: Praise be to Allaah. 1 – When the infant has been breastfed by the woman five times within the first two years of life, before weaning, then he becomes her child through breastfeeding, according to the consensus of the imams, and he becomes a mahram for her. The man to whom the milk belongs (because he is the father of the child whose conception and delivery led to production of the milk) becomes a father to the child through breastfeeding, according to the consensus of the well-known scholars. This is proven according to the Sunnah of the Messenger of Allaah (peace and blessings of Allaah be upon him). 2 – If the man and woman become parents of the child through breastfeeding, then all their children become brothers and sisters to the breastfed child, whether they are children of the father only (from another wife) or of the mother only (from another husband) or from them both, or they are their children through breastfeeding. They 161

Jurisprudence and Islamic Rulings

all become brothers and sisters of this child through breastfeeding. Even if a man has two wives and one breastfeeds a baby boy and the other breastfeeds a baby girl, these two children become brother and sister and it is not permissible for them to marry one another, according to the consensus of the four Imams and the majority of Muslim scholars. Ibn ‘Abbaas was asked about this matter and said: “The inseminator is one” – i.e., the man who had intercourse with both women, which led to the pregnancies that produced the milk is one and the same. 3 – According to Muslim consensus, there is no difference between the children of the woman who were breastfed along with this child and those who were born to her before or after that. See Majmoo’ al-Fataawa, 24/31-32 4 – There is no paternal relationship between the woman’s children through blood or through breastfeeding and her second husband, i.e., he is not regarded as a father to them through breastfeeding. The milk belongs to the first husband, who is a father to all of them. But her second husband is their mother’s husband and by his marrying her, her daughters by blood become mahrams to him, because they are his stepdaughters (rabaa’ib), and when he has consummated the marriage with their mother they become mahrams to him. Allaah says (interpretation of the meaning): “Forbidden to you (for marriage) are: … your stepdaughters under your guardianship, born of your wives to whom you have gone in” [al-Nisa’ 4:23] With regard to the relationship between the woman’s daughters through breastfeeding and her second husband who was not the owner of the milk, and whether or not they are mahrams for him because he is the husband of their mother – this is a matter concerning which there is a difference of opinion among the scholars. 162

Transactions - Part 5

The majority of scholars think that the woman’s daughters through breastfeeding are mahrams for the second husband, because he is the husband of their mother. Shaykh al-Islam Ibn Taymiyah was of the view, and Shaykh Ibn ‘Uthaymeen agreed with him, that they are not mahrams for him. Based on this, the women who were breastfed by this woman should observe hijab in front of her second husband, because he is not a mahram for them. Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him) said: If we examine the view of the majority, which is that it is not permissible for him to marry his wife’s daughter through breastfeeding and the view of Shaykh al-Islam Ibn Taymiyah that she is not a mahram for him, we may draw the conclusion that we should err on the side of caution because that is the approach that is referred to in the Sunnah. Sa’d ibn Abi Waqqaas disputed with ‘Abd ibn Zam’ah concerning a slave of Zam’ah. Sa’d said: “O Messenger of Allaah, this is the son of my brother ‘Utbah ibn Abi Waqqaas, whom he entrusted to my care because he is his son.” ‘Abd ibn Zam’ah said: “This is my brother, the son of my father’s slave woman who was born on my father’s bed.” The Prophet (peace and blessings of Allaah be upon him) saw that the child clearly resembled ‘Utbah but he said: “He is yours, O ‘Abd ibn Zam’ah. The child belongs to the bed.” Then he said to Sawdah bint Zam’ah, who was one of the Mothers of the Believers (the Prophet’s wives): “Observe hijab from him, O Sawdah.” Al-Bukhaari, 2053; Muslim, 1457. Even though he had ruled that he was a brother of hers, he told her to observe hijab from him because he saw that he clearly resembled ‘Utbah. This was the ruling of the Prophet (peace and blessings of Allaah be upon him) that was based on erring on the side of caution. He told her to observe hijab because there was some doubt about him, 163

Jurisprudence and Islamic Rulings

and he ruled that he was her brother because he was born in her father’s bed. Duroos al-Haram al-Makki, vol. 3 p. 245. And Allaah knows best. For more information see question no. 40226. Islam Q&A (www.islam-qa.com) 45819: Can he marry the daughter of a woman who was breastfed by his mother? Question: A woman was breastfed by my mother twice, and the one who was breastfed alongside her was my older sister. I had not been born yet. The woman who had been breastfed by my mother got married, and she has a daughter. Is it permissible for me to marry her (the daughter)?. Answer: Praise be to Allaah. If a woman breastfeeds a child, then this child becomes her child through radaa’ah (breastfeeding), and a brother through breastfeeding of all her children, whether those children were there before him or came later. Based on this, any woman who was breastfed by your mother is your sister through breastfeeding, and you are a maternal uncle to all her children. So it is haraam for you to marry her daughter, because you are her maternal uncle through breastfeeding. And the Prophet (peace and blessings of Allaah be upon him) said: “What becomes 164

Transactions - Part 5

mahram (forbidden for marriage) through breastfeeding is that which become mahram through blood ties.” Narrated by al-Bukhaari, 2645; Muslim, 1447. It is haraam for a maternal uncle through blood ties to marry his sister’s daughter, and the same applies to the maternal uncle through breastfeeding. But it should be noted that becoming a mahram through breastfeeding can only be established through five wellknown breastfeedings, because of the report narrated by Muslim (1452) from ‘Aa’ishah who said: ““When the Qur’aan was first revealed, the number of breast-feedings that would make a child a relative (mahram) was ten, then this was abrogated and replaced with the number of five which is well-known.” You state in your question that this woman breastfed from your mother twice, so we should note that the breastfeeding which makes the child a mahram is five feedings. Ibn al-Qayyim said in Zaad al-Ma’aad, 5/575: One breastfeeding (rad’ah) means when the child takes the beast and starts suckling, and then lets it go without being made to do so. That is one breastfeeding, because the Lawgiver referred to one breastfeeding in general terms, so it is to be interpreted according to custom, and this is the custom. If the child stops briefly in order to breathe or to rest or because of some distraction, then quickly goes back to the breast, this is regarded as one breastfeeding, just as when a person who is eating pauses briefly then quickly goes back to eating, this is not regarded as two meals, rather it is one. This is the view of al-Shaafa’i. And if the infant moves from one breast to the other, this is one breastfeeding. 165

Jurisprudence and Islamic Rulings

See also question no. 2864 Thus it becomes clear that the five breastfeedings could all take place in one sitting. If this woman was breastfed by your mother five times in this sense, then it is not permissible for you to marry her daughter, because you are her paternal uncle through breastfeeding. If she was breastfed less than five times, that does not mean that she is a mahram, so it is permissible for you to marry her daughter. If there is any doubt concerning the number of breastfeedings, whether it was five or not, there is no proof of the child being a mahram in the case of doubt. Ibn Qudaamah (may Allaah have mercy on him) said: If there is any doubt as to whether breastfeeding took place or not, or with regard to the number of breastfeedings, whether the number that makes the child a mahram was completed or not, this does not make the child a mahram, because the basic assumption is that he is not a mahram, and what is certain cannot be dispelled by what is uncertain. See also question no. 13357. And Allaah knows best. Islam Q&A (www.islam-qa.com) 36375: Their father’s wife breastfed a baby girl – is she regarded as their sister? Question: My father married a woman in the past and was blessed 166

Transactions - Part 5

with children from this wife. This woman died after breastfeeding another girl who was not her relative; rather she did that as an act of kindness. Are we brothers of this girl? Her father will not allow her to uncover in front of us unless there is a fatwa. Answer: Praise be to Allaah. If this woman breastfed the child for five known breastfeedings during the first two years of life, then she is a daughter of the woman and her husband who is the “owner of the milk” – namely your father – and all the children of that woman from her husband, the owner of the milk, or from any other husband will be brothers and sisters of that girl; the children of the husband, the owner of the milk, from the woman who nursed the infant or from any other wife, will also be brothers and sisters of that girl. So all of you, siblings born to your father from any of his wives, are all brothers and sisters of that girl. Shaykh Ibn Baaz (may Allaah have mercy on him) said: “If a woman breastfeeds a child for five or more known breastfeedings within the first two years, that child becomes the son or daughter of her and her husband, the owner of the milk, and all the children of that woman, from her husband who is the owner of the milk or any other husband, become brothers and sisters of this infant. The children of the husband who is the owner of the milk, from the wife who breastfed the child or any other wife also become brothers and sisters of the infant. Her brothers become maternal uncles for him, and the brothers of the husband who is the owner of the milk become paternal uncles. The father of the woman becomes a grandfather 167

Jurisprudence and Islamic Rulings

for the child, as does the father of the husband who is the owner of the milk, and his mother becomes a grandmother to the child, because Allaah says concerning female mahrams in Soorat al-Nisa’ (interpretation of the meaning): “your foster mothers who gave you suck, your foster milk suckling sisters” [al-Nisa’ 4:23] The Prophet (peace and blessings of Allaah be upon him) said: “What becomes mahram (forbidden for marriage) through breastfeeding is that which become mahram through blood ties.” And he said: “There is no breastfeeding (that makes the child a mahram) except in the first two years.” And it was proven in Saheeh Muslim that ‘Aa’ishah (may Allaah be pleased with her) said: “When the Qur’aan was first revealed, the number of breast-feedings that would make a child a relative (mahram) was ten, then this was abrogated and replaced with the number of five which is well-known, and the Prophet (peace and blessings of Allaah be upon him) passed away when this was the case.” This version was narrated by al-Tirmidhi; the original is in Saheeh Muslim. From Fataawa Islamiyyah, 3/333 With regard to the definition of breastfeeding, please see question no, 27280. Islam Q&A (www.islam-qa.com) 27280: Each of them breastfed the child of the other; do any rulings result from that? Question: I hope that you can explain the ruling on breastfeeding (radaa’ah) in full, for example, I breastfed my brother-in168

Transactions - Part 5

law’s son for a month, and my son was breastfed by my brother-in-law’s wife. I have a daughter and a son who are older than the child who was breastfed by my brotherin-law’s wife, and she also had two children before the child of hers whom I breastfed. I hope that you can describe the kind of breastfeeding that makes the child a mahram and the rulings that apply to the rest of the siblings? Thank you very much. Answer: Praise be to Allaah. Whoever is breastfed by a woman five times, before the age of two years, becomes her child through breastfeeding and she becomes his mother. Her husband (the “owner of the milk”) becomes a father to him through breastfeeding, and everyone who was also breastfed by this woman becomes his brother or sister through breastfeeding, and so on. That is because of the report narrated by Muslim (1425) from ‘Aa’ishah who said: “When the Qur’aan was first revealed, the number of breast-feedings that would make a child a relative (mahram) was ten, then this was abrogated and replaced with the number of five which is well-known.” And al-Tirmidhi narrated that Umm Salamah said: The Messenger of Allaah (peace and blessings of Allaah be upon him) said: “The only breastfeeding that creates the relationship of mahram is that which fills the stomach from the breast, before weaning.” Classed as saheeh by al-Albaani in al-Irwa’, 2150. What is meant by “from the breast” means at the time of breastfeeding. The Arabs say “Maata fulaan fi’l-thadiy 169

Jurisprudence and Islamic Rulings

(So and so died at the time of breastfeeding, i.e, in infancy, before weaning).” This is the view of al-Shawkaani. Al-Tirmidhi said: This is a saheeh hasan hadeeth, and the view followed by the majority of scholars among the companions of the Prophet (peace and blessings of Allaah be upon him) and others is that breastfeeding does not make a child a mahram unless it is done before the child reaches the age of two. Any breastfeeding that occurs after the age of two does not make the child a mahram.” Al-Bukhaari (2645) narrated that Ibn ‘Abbaas (may Allaah be pleased with him) said: The Prophet (peace and blessings of Allaah be upon him) said concerning the daughter of Hamzah: “She is not permissible for me (to marry), because what becomes mahram (forbidden for marriage) through breastfeeding is that which become mahram through blood ties. And she is the daughter of my brother through breastfeeding” The definition of breastfeeding: Ibn al-Qayyim (may Allaah have mercy on him) said: One breastfeeding (rad’ah) means when the child takes the beast and starts suckling, and then lets it go without being made to do so. That is one breastfeeding, because the Lawgiver referred to one breastfeeding in general terms, so it is to be interpreted according to custom, and this is the custom. If the child stops briefly in order to breathe or to rest or because of some distraction, then quickly goes back to the breast, this is regarded as one breastfeeding, just as when a person who is eating pauses briefly then quickly goes back to eating, this is not regarded as two meals, rather it is one. This is the view of al-Shaafa’i. And if the infant moves from one breast to the other, this is one breastfeeding. See also question no. 2864 170

Transactions - Part 5

Shaykh Ibn Baaz (may Allaah have mercy on him) said: If a woman breastfeeds a child for five well known breastfeedings or more during the first two years, the infant becomes a child for her and her husband who is the owner of the milk, and all that woman’s children from the husband who is the owner of the milk or from other husbands become siblings of this infant, and the children of the man who is the owner of the milk, whether from the breastfeeding woman or from other wives, become siblings of the infant. Her brothers become maternal aunts for him, and the brothers of the husband, the owner of the milk, become paternal uncles for him, and the father of the woman becomes a grandfather for the child and the father of the husband, the owner of the milk, becomes a grandfather to him and the husband’s mother becomes a grandmother to him, because Allaah says concerning female mahrams in Soorat al-Nisa’ (interpretation of the meaning): “your foster mothers who gave you suck, your foster milk suckling sisters” [al-Nisa’ 4:23] And the Prophet (peace and blessings of Allaah be upon him) said: “What becomes mahram (forbidden for marriage) through breastfeeding is that which become mahram through blood ties.” And he (peace and blessings of Allaah be upon him) said: “There is no breastfeeding except during the first two years.” And it was proven in Saheeh Muslim that ‘Aa’ishah (may Allaah be pleased with her) said: “When the Qur’an was first revealed, the number of breast-feedings that would make a child a relative (mahram) was ten, then this was abrogated and replaced with the number of five which is well-known. Then the Prophet (peace and blessings of Allaah be upon him) passed away when that was the state of affairs.” This 171

Jurisprudence and Islamic Rulings

version was narrated by al-Tirmidhi but it is also found in Saheeh Muslim. From Fataawa Islamiyyah, 3/333 In conclusion: If your son was breastfed five times in the first two years by your brother-in-law’s wife, then he is a brother to all of her sons and daughters. Similarly the son of this woman who was breastfed by you, becomes a son to you and a brother to all your sons and daughters, whether they are older or younger than the one who was breastfed, whether they were already present or have not been born yet. Your sons – apart from the son who was breastfed by the wife of his paternal uncle – may marry the daughters of their paternal uncle, because they are not mahrams to one another. And your daughters may marry the sons of their paternal uncle except the son who was breastfed by you, because he is a brother to them, as explained above. And Allaah knows best. Islam Q&A (www.islam-qa.com) 34557: She is not permissible for him to marry because she is his maternal aunt through breastfeeding (radaa’ah) Question: We are faced with a very important and sensitive issue which has to do with breastfeeding (radaa’ah). This situation is as follows: 172

Transactions - Part 5

- Aaminah (the grandmother) is the sister of Zaynab and breastfed Faatimah the daughter of Zaynab. - Then Aaminah breastfed Umm Kathoom (her daughter’s daughter). The issue is that one of Faatimah’s sons has proposed marriage to Umm Kalthoom. Is this marriage permissible?. Answer: Praise be to Allaah. The question may be summed up by saying that Aaminah breastfed both Faatimah and Umm Kalthoom, so Faatimah and Umm Kalthoom are sisters through breastfeeding. So it is not permissible for any of Faatimah’s sons to marry Umm Kalthoom, because she is their maternal aunt through breastfeeding. The Prophet (peace and blessings of Allaah be upon him) said: “What becomes mahram (forbidden for marriage) through breastfeeding is that which become mahram through blood ties.” Narrated by al-Bukhaari, 2645; Muslim, 1445. The maternal aunt through blood ties is a mahram just as is the maternal aunt through breastfeeding. Ibn Qudaamah (may Allaah have mercy on him) said in al-Mughni (7/87): Every woman who is a mahram (forbidden for marriage) because of blood ties, her equivalent through breastfeeding is also a mahram, namely mothers, daughters, sisters, paternal aunts, maternal aunts, brother’s daughters and sister’s daughters… because the Prophet (peace and blessings of Allaah be upon him) said: “What becomes mahram (forbidden for marriage) through 173

Jurisprudence and Islamic Rulings

breastfeeding is that which become mahram through blood ties.” Agreed upon. And we do not know of any differing opinion on this matter. Being a mahram because of breastfeeding depends on two things: 1 – That the child be breastfed five times, meaning that the infant grasps the nipple and … then lets go. 2 – These five breastfeedings should have taken place before he reaches the age of two. See also question no. 27280 & 804. And Allaah knows best. Islam Q&A (www.islam-qa.com) 13357: He is married to his maternal aunt through breastfeeding Question: Until recently there were concubines in our country, and this issue has come up; I would like to know the shar’i ruling on it. A man had a wife whose name was Aaminah, and he had a concubine whose name was Sa’diyyah. Aaminah (his wife) breastfed a girl called Zaynab, and the slave woman Sa’diyyah had a daughter whose name was Haleemah. The daughter, Haleemah, got married and had a son called ‘Ali, who grew up and married Zaynab, who had been breastfed by Aaminah. 174

Transactions - Part 5

They have been married for many years, and have several sons and daughters. My question is, what is the ruling on this marriage? Is it permissible for me not to tell them, if this marriage is not legitimate?. Answer: Praise be to Allaah. One of the rulings on radaa’ah (breastfeeding) is that the milk of the wet nurse has an effect on the child she breastfeeds and on his or her children. If Zayd was breastfed by Faatimah, then Zayd and his children are regarded as children of the wet nurse (Faatimah), but his brothers are not connected to them through breastfeeding. But for the wet nurse, the bond established by breastfeeding includes all her relatives, so whoever is related to the wet nurse is also related to the child whom she breastfed. So the husband of the wet nurse is regarded as a father of the child through breastfeeding; her brothers are regarded as maternal uncles through breastfeeding, and her father and grandfathers are regarded as grandfathers of the child through breastfeeding. If her husband has another wife, then this woman is regarded as the wife of the child’s father through breastfeeding, and her children are regarded as his brothers on the father’s side through breastfeeding… and so on. ‘Urwah ibn alZubayr narrated that ‘Aa’ishah said: Aflah the brother of Abu’l-Qu’ays asked permission to enter upon me after the ruling on hijab had been revealed, and I said, “I will not let you in until I ask the permission of the Prophet (peace and blessings of Allaah be upon him), for it was not the brother of Abu’l-Qu’ays who nursed me but the wife of Abu’l-Qu’ays.” The Prophet (peace and blessings 175

Jurisprudence and Islamic Rulings

of Allaah be upon him) entered upon me and I said to him, “O Messenger of Allaah, Aflah the brother of Abu’lQu’ays asked permission to enter upon me, but I refused to let him in until I asked your permission.” The Prophet (peace and blessings of Allaah be upon him) said: “What stopped you from letting him in? He is your (paternal) uncle.” I said, “O Messenger of Allaah, the man is not the one who nursed me, rather it was the wife of Abu’l-Qu’ays who nursed me.” He said, “Let him in, for he is your uncle, may your right hand be rubbed with dust (i.e., may you prosper)!” ‘Urwah said: For that reason ‘Aa’ishah used to say, “Consider those things which are illegal (for marriage) because of blood relations as illegal because of the corresponding relations through breastfeeding.” Narrated by al-Bukhaari, 4796; Muslim 1445. This hadeeth confirms that there are parents through breastfeeding, and that the husband of the wet nurse is regarded as a father of the child through breastfeeding. The wife of Abu’l-Qu’ays breastfed ‘Aa’ishah, so she became a mother to her, and her husband became a father to her through breastfeeding, and his brothers became paternal uncles to ‘Aa’ishah through breastfeeding. Hence the brother of Abu’l-Qu’ays said to ‘Aa’ishah, “Do you observe hijab before me when I am your paternal uncle?” Narrated by al-Bukhaari, 3644. The Prophet (peace and blessings of Allaah be upon him) confirmed that he was a paternal uncle to ‘Aa’ishah when he said, “Let him in, for he is your uncle, may your right hand be rubbed with dust (i.e., may you prosper)!” See al-Mughni ma’a alSharh al-Kabeer, 9/199; al-Mawsoo’ah al-Fiqhiyyah, 22/ 248. 176

Transactions - Part 5

With regard to the matter mentioned in the question, the answer is as follows: The daughter, Zaynab, who was nursed by the wife, Aaminah, is regarded as a daughter of Aaminah because of this breastfeeding. She is also a daughter to Aaminah’s husband through breastfeeding. So the husband is her father through breastfeeding, if the child was nursed five times or more when the infant was under the age of two years. Based on that, the husband’s daughter Haleemah from his concubine Sa’diyyah is the sister of Zaynab through her father through breastfeeding, and Haleemah’s children – including ‘Ali – are mahrams to Zaynab because she is their maternal aunt through breastfeeding. So it is not permissible for any of them to marry her. You mention in your question that ‘Ali married Zaynab. This marriage is invalid and he must leave her at once, because he is regarded as having married his maternal aunt through breastfeeding. With regard to the children who were born as a result of this marriage, they are legitimate children who should be named after their father ‘Ali, because this is regarded as an ambiguous marriage and children born as a result of that are to be named after the father, as the scholars said. Shaykh ‘Abd al-‘Azeez ibn Baaz was asked: I was breastfed by a woman whose husband took a second wife and had children from her. Are they my brothers? He replied: If you were breastfed five times or more, and the milk belonged to the husband because it was produced as the result of a baby being born to him, then they are your brothers through your father through breastfeeding.” Fataawa Islamiyyah, 3/323.

177

Jurisprudence and Islamic Rulings

Shaykh Muhammad ibn ‘Uthaymeen (may Allaah have mercy on him) was asked a similar question: After I had consummated the marriage with my wife, I found out that she is my sister through breastfeeding, because I was breastfed along with her sister. Is she my mahram in this case? He replied: Yes, if the matter is as you say, and you were breastfed along with the wife’s sister from her mother, in the sense that you were breastfed by the wife’s mother or her father’s wife, then you are her brother and the marriage is invalid. But you should realize that breastfeeding does not count unless the child is breastfed five or more times in the two years before weaning. If it was less than that, then it has no effect and it does not establish the relationship of mahram. If you are certain that you were breastfed five times or more by the mother of the woman whom you have married in the first two years of life, then you must leave her because this marriage is not valid. Any children who were born before you found out are to be named after you according to sharee’ah, because these children were born as the result of an ambiguous marriage and children born as a result of that are to be named after the father, as the scholars said. Fataawa Islamiyyah, 3/329. You have to tell them about that, because they have the right to receive sincere advice from you and so as to denounce an evil action, because their staying in this invalid marriage is an evil action. The Prophet (peace and blessings of Allaah be upon him) said, “Whoever among you sees an evil action, let him change it with his hand (by taking action), and if he cannot then with his tongue (by speaking out) …” Narrated by Muslim. 178

Transactions - Part 5

May Allaah help us all to do that which He loves and which pleases Him. Islam Q&A (www.islam-qa.com) 20759: Ruling on breastfeeding and the wisdom behind it Question: Is providing breast milk (mother/wetnurse) to an infant too young to live on solid foods a required duty?. Answer: Praise be to Allaah. Yes, if the infant needs to be breastfed then breast milk must be provided for him. It says in al-Mawsoo’ah al-Fiqhiyyah (22/239): There is no difference of opinion among the fuqaha’ that it is obligatory to breastfeed an infant so long as he needs that and he is at the age for breastfeeding. Breastfeeding is a proven right of the infant, according to the rulings of sharee’ah, and must be provided for him by the one whose duty it is to do so. The fuqaha’ clearly stated that breastfeeding is the right of the child. They explained the reason for that as being that breastfeeding for an infant is like maintenance for an adult. What they said is true and is indicated by the Qur’aan. Allaah says (interpretation of the meaning): “but the father of the child shall bear the cost of the mother’s food and clothing on a reasonable basis” 179

Jurisprudence and Islamic Rulings

[al-Baqarah 2:233] Allaah has enjoined upon the father to spend on the woman who nurses his child, because nutrition reaches the child via the nurse through the breast milk. So spending on the nurse is in fact spending on him. It says in Sharh Muntaha al-Iraadaat: The one who is obliged to spend on the infant, whether male or female, is obliged to spend on the child’s nurse, because the child is nourished by the milk produced by the nurse, and that can only happen if she is nourished. So it is obligatory to spend on the nurse because this is in fact spending on the child. Al-Mufassal fi Ahkaam al-Mar’ah, 9/464. The scholars are unanimously agreed on the effects of breastfeeding in establishing the prohibition on marriage and on making the child the mahram of the woman who breastfeeds him, and making it permissible to look at her and be alone with her, but it does not make it obligatory to spend on the person, or make him an heir or a guardian in cases of marriage. The reason for this mahram relationship is obvious, because when the infant is nourished by the milk of this woman, his flesh grows on that, so it is as if he is her own child. Hence the scholars regarded it as makrooh to appoint a kaafir woman or an immoral woman as a wet-nurse, or a woman who was suffering from a contagious disease, because it may pass to the child. They regarded it as mustahabb to choose a wet-nurse who was of good character and morals, because breastfeeding changes the child’s nature. It is better if no one breastfeeds the child but his mother, 180

Transactions - Part 5

because that is more beneficial, and that may be obligatory for her if the child will not accept the breast of anyone else. Doctors encourage giving the mother’s milk, especially in the early months. The wisdom of Allaah in creating the nourishment of the child in his mother’s milk has been proven through scientific and medical research. Medical benefits of breastfeeding: Breastfeeding brings great benefits. Allaah has enjoined breastfeeding in His Book, when He said (interpretation of the meaning): “The mothers shall give suck to their children for two whole years, (that is) for those (parents) who desire to complete the term of suckling” [al-Baqarah 2:233] So Allaah has stated the child’s right to be breastfed. Fourteen hundred years after this verse was revealed, international organizations such as the World Health Organization have issued statement after statement calling on mothers to breastfeed their children, whereas Islam enjoined that fourteen centuries ago. The benefits of breastfeeding for the child include the following: 1 – The mother’s milk is sterile, containing no germs. 2 – The mother’s milk cannot be imitated by any milk prepared from the milk of cows, goats or camels. It is composed in such a way as to meet the child’s needs day after day, from birth until weaning. 181

Jurisprudence and Islamic Rulings

3 – The mother’s milk contains sufficient amounts of protein and sugar that suit the infant completely, whereas the proteins in cow’s, goat’s and buffalo’s milk are difficult for the child’s stomach to digest, because they are suited to the offspring of those animals. 4 – The development of children who are breastfed is faster and more complete than that of children who are bottle-fed. 5 – The psychological and emotional bond between the mother and her child. 6 – The mother’s milk contains various elements that are essential to the child’s nourishment, in the right amounts and formats needed by his body, and in a form that is suited to his ability to digest and absorb. The nourishing content of the milk is not fixed; it changes day by day according to the child’s needs. 7 – The mother’s milk is kept at a suitable temperature that meets the child’s needs, and can be given to him at any time. 8 – Breastfeeding is a natural means of contraception for the mother, and is free of the complications that may accompany use of birth control pills, the coil (IUD) or injections. From Tawdeeh al-Ahkaam, 5/107. Islam Q&A (www.islam-qa.com) 40226: He breastfed from his maternal aunt twice; can he marry her daughter? Question: I proposed marriage to the daughter of my maternal aunt, 182

Transactions - Part 5

but when the time for marriage drew close my aunt told me that she had breastfed me twice when I was little, but I had not drunk my fill on those occasions. Is it permissible for me to marry her?. Answer: Praise be to Allaah. It is permissible for you to marry the daughter of your maternal aunt in this situation, because breastfeeding (radaa’ah) only makes the woman (and her daughters) the mahrams of the child who nursed if it takes place five times. [A mahram is a relative whom one is forbidden to marry and with whom the rulings of hijab or covering do not apply - Translator]. The evidence for that is the hadeeth narrated by Muslim (1452) from ‘Aa’ishah who said: “One of the (rulings) that was revealed in the Qur’aan was that ten known breastfeedings make the child a mahram, then that was abrogated and replaced with five.” Al-Nawawi (may Allaah have mercy on him) said: The scholars differed concerning the number of breastfeedings for which the ruling on breastfeeding (radaa’ah) applies. ‘Aa’ishah and al-Shaafa’i and his companions said that there is no proof for any number less than five. The majority of scholars said that the ruling applies if breastfeeding occurs once. This was narrated by Ibn al-Mundhir from ‘Ali, Ibn Mas’ood, Ibn ‘Umar, Ibn ‘Abbaas, ‘Ata’, Tawoos, Ibn al-Musayyib, al-Hasan, Makhool, al-Zuhri, Qataadah, Hammaad, Maalik, alAwzaa’i, al-Thawri and Abu Haneefah – may Allaah be pleased with them. Abu Thawr, Abu ‘Ubayd, Ibn alMundhir and Dawood said: The ruling applies in the case of three breastfeedings, not less than that. Al-Shaafa’i and those who agreed with him followed the hadeeth of ‘Aa’ishah which mentioned five known breastfeedings. 183

Jurisprudence and Islamic Rulings

For the definition of breastfeeding which makes the child a mahram, see question no. 804. Shaykh Ibn Baaz was asked whether breastfeeding from a woman three times makes her a mahram. He replied: this breastfeeding three times does not make her a mahram through breastfeeding. The ruling on becoming a mahram through breastfeeding only applies if breastfeeding occurs five times or more. Then he quoted the hadeeth of ‘Aa’ishah as evidence. Fataawa Islamiyyah, 3/326. Shaykh Ibn ‘Uthaymeen said: One breastfeeding does not have any effect, rather it must be five breastfeedings that occur before the child is weaned and before he reaches the age of two. A person does not become the woman’s (foster) child if he breastfeeds once or twice or three or four times. It must also be five known breastfeedings; if there is some uncertainty as to whether he breastfed four or five times, the principle is that it was four, because every time we are uncertain about numbers, we take the lower number. Based on this, if a woman says, I breastfed this child but I do not know if it was once or twice, or three or four or five times, we say that this child is not her (foster) child, because it has to be five known breastfeedings without a doubt. Al-Fataawa al-Jaami’ah li’l-Mar’ah al-Muslimah, 2/768. Islam Q&A (www.islam-qa.com) 13750: The blessing of natural breastfeeding Question: I have been told that breastfeeding is blessed by Allah 184

Transactions - Part 5

and that the Koran states; ‘every drop of breast milk’ is blessed. Could you please tell me where in the Koran I might find such a refence? Answer: Praise be to Allaah. Undoubtedly the blessing comes where Allaah wills, and it comes if a person asked Allaah to bless him in his wealth or provision, so He makes it blessed, or He makes the person blessed, as ‘Eesa (Jesus – peace be upon him) said. Allaah says: “[‘Eesa (Jesus) said:] And He has made me blessed wheresoever I be” [Maryam 19:31 – interpretation of the meaning] And the blessing will be wherever Allaah puts it, as He says concerning rain (interpretation of the meaning): “And We send down blessed water (rain) from the sky” [Qaaf 50:9] i.e., you gain blessing by its falling, because it makes trees and plants grow. With regard to breastfeeding, I do not remember any aayah which mentions it in conjunction with blessing in particular. Shaykh ‘Abd al-Kareem al-Khudayr. The Qur’aan encourages the mother to breastfeed her child naturally. Allaah says: “The mothers shall give suck to their children for two whole years, (that is) for those (parents) who desire to complete the term of suckling” 185

Jurisprudence and Islamic Rulings

[al-Baqarah 2:233] This is a command to mothers, as the scholars explained, to breastfeed their children. The scholars also mentioned that one part of breastfeeding is obligatory, which is the yellow substance (colostrum) that is produced at the beginning of breastfeeding and which is known medically to be of great benefit in building the immune system of the child etc. Undoubtedly in carrying out the commands of Allaah there is great blessing. And Allaah is the Source of strength. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 12454: It is permissible for a woman to breastfeed her child before doing ghusl Question: If a woman has not yet done ghusul can she breast feed her child? Answer: Praise be to Allaah. It is permissible for a women to breastfeed her child before doing ghusl, whether it is ghusl after nifaas, menstruation or sexual relations. There is no evidence to indicate that she must do ghusl in these cases in order to breastfeed her child. Rather ghusl is obligatory in cases of impurity in order to pray or to do any act of worship for which tahaarah (purity) is required. The woman who is bleeding following childbirth or menstruating must do ghusl when 186

Transactions - Part 5

the nifaas or period ends in order to do those acts of worship and also so that it may become permissible for her husband to have intercourse with her. It is not haraam for the woman who is menstruating or bleeding following childbirth to touch anything during her period or nifaas, except for the Mushaf (copy of the Qur’aan in Arabic only). And Allaah knows best. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 21203: Breastfeeding a child during pregnancy Question: I am breastfeeding my child who is ten months old, and I am now pregnant. Should I stop breastfeeding my child because of pregnancy? Or should I continue to breastfeed despite the fact that I am pregnant? Is breastfeeding a child whilst pregnant haraam or halaal? I hope that you can answer my question quickly. Answer: Praise be to Allaah. The question of breastfeeding a child during pregnancy should be referred to a capable and trustworthy doctor. If he says that breastfeeding the child will not harm the foetus or the nursing infant, then there is no reason not to do it and it is permissible. But if it will harm your child or the foetus, then do not breastfeed him. And Allaah knows best. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 187

Jurisprudence and Islamic Rulings

4049: Ruling on milk banks Question: In America there are banks known as milk banks, which buy milk from nursing mothers then sell it to women who need to give it to their children but their own milk is lacking, or they are sick or are too busy working, etc. What is the ruling on buying milk from these banks? Answer: Praise be to Allaah. We put this question to Shaykh Muhammad ibn Saalih al-‘Uthaymeen, may Allaah preserve him, who replied as follows: This is haraam. It is not permissible to establish this kind of bank, because this is human milk, and the milk from different mothers will be mixed, so that no one will know who is the mother. In Islam, drinking the milk of a woman creates the same relationship as does a close tie by blood (i.e., it has an effect on whom one may and may not marry, etc.). If the milk is of any kind other than human, then there is nothing wrong with milk banks. And Allâh knows best. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 1488: The rules of Radaa’ still apply if the child drinks the breast-milk from a bottle Question: I understand that a child becomes “related” to a woman 188

Transactions - Part 5

when he nurses from her. Does he also become related if he receives her breastmillk in a bottle ? Answer: Praise be to Allaah. Yes, the rules of Radaa’ still apply, so long as the child drinks the equivalent of the well-known five breast feedings within the first two years of life. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 804: Uncertain of the number of breast-feedings Question: My question is about marriage. I want to marry a cousin because we are very deeply in love. But we heard that I got some milk from her mother. Then we wondered how many times this had happened. When we asked her mother, she said, “I don’t remember - it is so long ago.” So she does not remember how many times she may have given me milk. I do not know what I should do in such a situation. But one thing I know very well is that I love her very much! Please advise me. Answer: Praise be to Allah. For breast-feeding to have the effect of making a child a relative (mahram), two conditions must be met: (1) The number of breast-feedings should be five or more, 189

Jurisprudence and Islamic Rulings

because of the hadith of ‘Aa’ishah (may Allah be pleased with her), who said: “When the Qur’an was first revealed, the number of breast-feedings that would make a child a relative (mahram) was ten, then this was abrogated and replaced with the number of five which is well-known.” (Reported by Muslim, no. 1452). (2) This should happen within the first two years of the child’s life, because of the hadith: “Harmalah ibn Yahya told us that ‘Abdullah ibn Wahb told us that Ibn Lahimah informed us from Abu al-Aswad from ‘Urwah from ‘Abdullah ibn al-Zubayr that the Messenger of Allah (Peace & Blessings of Allah be Upon Him) said: “There is no breast-feeding except what fills the stomach to bursting point.” (Reported by Ibn Maajah, no. 1946; see also Saheeh al-Jaami‘, no. 7495). Al-Bukhaari, may Allah have mercy on him, included a chapter in his Saheeh entitled: “The chapter of the one who says there is no breast-feeding after two years because of the words of Allah ‘. . . two whole years, (that is) for those (parents) who desire to complete the term of suckling . . .’ [al-Baqarah 2:233].” The definition of rad‘ah (one breast-feed) is that the child should take the breast and drink milk from it, then leave it of his own accord in order to breathe or to change position, and so on. If this is the case, then the rulings concerning breastfeeding will apply, i.e. the child will be considered a relative and marriage will be forbidden, etc. In the case of doubt concerning the number of breastfeedings, Ibn Qudaamah, may Allah have mercy on him, said: “If there is some doubt concerning whether breastfeeding took place, or concerning the number of feeds and whether it was enough to make the child a relative 190

Transactions - Part 5

(mahram) or not, then there is no proof that the child must be considered a relative, because the general rule of life is that a child does not breast-feed from anyone except his own mother, and one cannot dismiss certainty in favour of doubt. (al-Mughni 11/312). Therefore it is permissible to marry if there is no proof of breast-feeding that would make the individual concerned a relative. I do not want to omit reminding the one who asked this question that we are obliged to adhere to the Sharee‘ah no matter where it leads us, and our desires and emotions should not prevent us from following the truth. The Muslim must remain chaste and avoid all kinds of “love relationships.” He must strive to protect himself by marrying in a proper fashion according to Islamic sharee‘ah. Sheikh Muhammed Salih Al-Munajjid (www.islamqa.com) 721: Breast-feeding a child over two years old Question: Is it permissible to breast-feed a child over 2 years old? Until what age does breast-feeding make the child a relative (mahram)? Are there any exceptions to this rule? I am asking because there are many 2 year olds in our area who need families - they need to be “adopted” in the Western sense. I would like to help these children, and expand our ummah, but too avoid hardship, I hope that there is a way that they could become relatives of my son. 191

Jurisprudence and Islamic Rulings

Answer: Breast-feeding a child over two years old will not have the effect of making him a relative (mahram). It is permitted to breast-feed one’s own child beyond two years, but two years is enough, as Allah says: ”The mothers shall give suck to their children for two whole years, (that is) for those (parents) who desire to complete the term of suckling . . .” [al-Baqarah 2:233] The reply to the rest of this question can be found under Question 804. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com)

192

Transactions - Part 5

Chapter 4 Transactions Custody 43476: He is having a problem with his second wife and he fears for his daughter Question: I would appreciate if you could guide me and let me know about below mentioned queries as per Islamic Ruling and Values, those are as follows: A. If a wife (my 2nd wife) fabricate false documents and files cases one after an other about dowry, maintenance etc and abuse her husband behind his back while living with her mother. What are the Islamic ruling on this. (I have tried to reconcile with her but no avail and this will be her 3rd divorce but she doesn’t feel ashamed. She just want money.) B. She file a divorce case in the court. Should it be considered a Khula. if not then why not. C. Who should have the custody of a child. I don’t want to say bad things about her just describing few facts. As her life style is not caring and good enough to raise a child. Her formal and informal education is low level. So in future her style will influence the child’s characters. On top of that by phone she told me that she will make my child a bad person. To save that child who should have the custody. Even-though, if she works and makes some money but money is not a life, life means values, such as living with high social, moral and religious values. From above mentioned values side, she is not very strong. D. When she works, her mother can take care of our child. Her mother’s is an illiterate person and she, (I overheard) her mother use bad words 193

Jurisprudence and Islamic Rulings

for our child. How can she educate her etc. As per Islamic law, is it right to let some else in a family to take care of the child instead of her father. Who is more educated and have high standard for religious and other values. More respectable in the society. I believe I can make my child a good citizen with high social, moral and religious values. Answer: Praise be to Allaah. The basic principle concerning divorce is that it is makrooh (disliked), as is indicated by the verse in which Allaah says (interpretation of the meaning): “Those who take an oath not to have sexual relation with their wives must wait for four months, then if they return (change their idea in this period), verily, Allaah is OftForgiving, Most Merciful. 227. And if they decide upon divorce, then Allaah is AllHearer, All-Knower” [al-Baqarah 2:226] In relation to changing their minds He said “Oft-Forgiving, Most Merciful” and in relation to divorce He said “AllHearer, All-Knower”. This indicates a kind of warning, which in turn indicates that divorce is disliked by Allaah (makrooh). But there may be some cases in which divorce is inevitable, and even essential. In the case which you mention, divorce may be the appropriate solution, because it is unthinkable that a wife would treat her husband in such a bad way as you describe in your question. A woman could say or do something to offend her husband, but to be constantly ungrateful is very strange. 194

Transactions - Part 5

But before divorce, you have to try to reconcile first, and put up with the woman. If she has some bad characteristics, you will also find some good qualities, so you can put up with the bad characteristics because of the good ones. See questions no. 20044 and 2076. If you can get some relatives involved to solve the problem, then do so, as an act of mercy to this poor girl who will suffer – no matter what the situation – from the bitterness of separation and the break-up of the family. If divorce is the final solution, and you have exhausted all possible solutions, then pray istikhaarah (asking for guidance) and consult others, and put your trust in Allaah. With regard to the matters that she has referred to the court, this may be a request to the qaadi (judge) to compel the husband to divorce her by talaaq or it may be khula’, depending on the situation. If she is going to give the husband some money or return the mahr to him in return for getting a divorce, then this is khula’; if she is not going to pay anything then this is talaaq, if it takes place. With regard to custody, the basic principle is that the mother has more right to custody, so long as there is no impediment to that. If there is any impediment, such as the mother marrying someone who is a stranger (nonmahram) to the child, or the mother’s character or attitude is bad, then custody passes to the mother’s mother according to the majority. If the mother’s mother is the same (i.e., of bad character etc) then custody passes to the father. Shaykh al-Islam Ibn Taymiyah was of the view that in the case of a dispute between the mother’s mother and the father, custody should be given to the father, because he is closer to the child. This view was also favoured by Shaykh Ibn ‘Uthaymeen in his commentary 195

Jurisprudence and Islamic Rulings

on the chapter on custody in Zaad al-Mustaqni’. We have already discussed this in detail in question no. 5234, 9463, 8189, and 21516. And Allaah knows best. Islam Q&A (www.islam-qa.com) 20705: If a divorced woman remarries, she has no right to custody Question: I am divorced and my x-wife. My x-wife has remarried to a Muslim. We have four sons ages 1, 3, 5, & 7. I have requested majority custody of our sons, but she has refused and has made it very difficult for me to visit with our sons. What are my rights and obligations under these circumstances?. Answer: Praise be to Allaah. The mother has more right to custody of her children before the age of seven so long as she does not remarry, in which case the right passes to the one who is most entitled to that after her, because Ahmad (6707) and Abu Dawood (2276) narrated from ‘Abd-Allaah ibn ‘Amr that a woman said: “O Messenger of Allaah, my womb was a vessel for this son of mine and my breasts gave him (milk) to drink, and my lap was a refuge for him, but now his father has divorced me and he wants to take him away from me.” The Messenger of Allaah (peace and blessings of Allaah be upon him) said to her: “You have more right to him so long as you do not remarry.” This hadeeth was classed as hasan by al-Albaani in Saheeh Abi Dawood. 196

Transactions - Part 5

It is obligatory to allow the father to see his children and to ask how they are, whether they are in the custody of the mother or of someone else. Because the mother’s right to custody is lost when she remarries, then it should be given to the one who is most entitled to that after her. There was some difference of opinion among the fuqaha’ as to who has more right after the mother. Some scholars said that the right passes to the mother’s mother. Shaykh al-Islam Ibn Taymiyah was of the view that the father has more right than the mother’s mother, on which basis custody should be given to you. Al-Sharh al-Mumti’, 6/26, complete edition). Similarly if the mother’s mother is a kaafirah or an immoral person, then custody must be given to the father, even according to those who say that the mother’s mother has more right than the father. It should be noted that what is meant by custody is keeping and raising the child. Hence a person’s right to custody is lost if he is immoral and corrupt, or careless and heedless, or if he travels a great deal which will harm his children’s interests. The parents should cooperate in this matter, and pay attention to the child’s interests, so that their disputes will not adversely affect the children. There is no Qur’aanic verse concerning this matter which specifies who is more entitled to custody, but the following verses should be sufficient for the Muslim: “And whatsoever the Messenger (Muhammad) gives you, take it; and whatsoever he forbids you, abstain (from it). And fear Allaah; verily, Allaah is Severe in punishment” [al-Hashr 59:7]

197

Jurisprudence and Islamic Rulings

“But no, by your Lord, they can have no Faith, until they make you (O Muhammad) judge in all disputes between them, and find in themselves no resistance against your decisions, and accept (them) with full submission” [al-Nisa’ 4:65] “It is not for a believer, man or woman, when Allaah and His Messenger have decreed a matter that they should have any option in their decision. And whoever disobeys Allaah and His Messenger, he has indeed strayed into a plain error” [al-Ahzaab 33:36] The Prophet (peace and blessings of Allaah be upon him) ruled that the mother loses the right to custody if she remarries, as stated in the hadeeth quoted above, so the believing woman has to accept that and submit. And Allaah knows best. Islam Q&A (www.islam-qa.com) 21612: If a woman decides to leave the city of her exhusband, who gets custody of their child? Question: Does the islam permit to use the US courts and laws to solve custody issues? (please assume that both man and woman lives in USA). If not, how can this issue resolove when both parties believe of their custody rights? If the woman got married, does she loose automaically her custody right to the man?. Answer: Praise be to Allaah. With regard to custody, if the former spouses came from 198

Transactions - Part 5

different cities, the basic principle concerning custody – so long as the child has not yet reached the age of seven – is that the mother has custody, because the Prophet (peace and blessings of Allaah be upon him) said: “You have more right to it so long as you have not remarried.” Narrated by Abu Dawood, 1938. This is the basic principle. But there is another principle, which is that the matter of custody is based on whatever is in the best interests of the child. If travelling with his mother or father will be harmful to the child, then custody should be given to the parent who will not harm the child by travelling. If the mother’s travelling to another city will not have any harmful effects on the child, then the basic principle is that custody is hers. With regard to referring to the courts of a non-Muslim country to resolve the matter of custody, that is not permissible, because this is referring to taaghoot (falsehood, false judges) for judgement, and Allaah says (interpretation of the meaning): “And whosoever does not judge by what Allaah has revealed, such are the Kaafiroon (i.e. disbelievers — of a lesser degree as they do not act on Allaah’s Laws)” [al-Maa’idah 5:44] “So judge among them by what Allaah has revealed, and follow not their vain desires, diverging away from the truth that has come to you. To each among you, We have prescribed a law and a clear way” [al-Maa’idah 5:48] The two former spouses should go to the Islamic center and ask the scholars or knowledgeable people there to judge between them. 199

Jurisprudence and Islamic Rulings

If the woman remarries, she loses the right to custody, because of the hadeeth quoted above. See also question no. 9463. Shaykh Dr Khaalid ibn ‘Ali al-Mushayqih. (www.islamqa.com) 9463: If she asks for a divorce then gets married, does she have the right to custody of her children? Question: I am about to get my marriage annuled by a counsil of iman primarily because i have enough islamic grounds for it and because my spouse does not want to give me talaaq or to accept khaula.The iman even mentioned to him that i am not his property to force me to live with him.I have 3 children which in the iman’s opinion for the best welfare of the children it’s better to be under my custody.iman’comments about my spuse’s character “he can not be trusted, he uses the name of shariah for his own purposes.” Because my iddah did not even started i am shy to ask this question: if i find a brother that wishes to marry me, do i loose automatically the custody or the welfare of the children is considered? do you have any hadith towards this issue? the mother after getting married with another brother kept the custody of the children. by the law of the land i will get the full custody ; however i fear ALLH(swt) and i do not want to go against shariah. Answer: Praise be to Allaah. 200

Transactions - Part 5

Firstly: It is better for a woman to be patient and put up with her husband, especially if they have children. No household is free from arguments. But if her husband is mistreating her very badly and she cannot bear it, then she may get divorced. Secondly: If a woman gets divorced by talaaq then her ‘iddah lasts for three menstrual cycles. But she is gets divorced by khula’, then her ‘iddah is just one menstrual cycle. It is haraam to propose marriage to her whilst she is still in ‘iddah. Thirdly: Sharee’ah states that if the spouses separate, the mother has more right to custody of the children than the father, but if she remarries she loses her right to custody. The evidence for that is the fact that the Prophet (peace and blessings of Allaah be upon him) said to that woman who asked for custody of her child from her husband – after he had divorced her – “You have more right to that so long as you do not get married.” Narrated by Abu Dawood, 2276 from the hadeeth of ‘AbdAllaah ibn ‘Amr (may Allaah be pleased with him); classed as hasan by al-Albaani in Saheeh Abi Dawood, 1991. The hadeeth indicates that the woman has more right to custody of her children than her husband, unless she gets married, in which case he has more right. Our advice to this sister is that she should think long and hard before she asks for divorce or khula’. If you are able to be patient and put up with your husband’s annoyance, 201

Jurisprudence and Islamic Rulings

and the problems between you can be resolved by mutual understanding and agreement, then this is better. But if you cannot stand to live with him, this is something that only you can decide. If they separate and the woman has to choose between her children and another husband, then she should pray istikhaarah, seek the help of Allaah and turn to Him in du’aa’ and supplication, asking Him to guide her to the right decision. This is the Islamic ruling concerning this matter. If the law of your country states that the mother gets custody of the children even if she remarries, this is contrary to the rules of sharee’ah, and that is not permissible. Allaah says (interpretation of the meaning): “Do they then seek the judgement of (the days of) Ignorance? And who is better in judgement than Allaah for a people who have firm Faith” [al-Maa’idah 5:50] And Allaah knows best. Islam Q&A (www.islam-qa.com) 21516: Custody of a Muslim’s children from a kaafir wife if he dies Question: If the muslim man dies, to whom does the custody of the children goto if the wife is a christian, and the only muslim relatives of the man are far away?. Answer: Praise be to Allaah. 202

Transactions - Part 5

Custody of the children should not be given to a kaafir. This is the view of Maalik, al-Shaafa’i and Ahmad. (alMughni, 11/412). If the Muslim relatives of the man are far away, then the children should be sent to them. If that is not possible then the children should be given to a Muslim family to take care of them and have custody of them. The conditions of custody include the following: Being Muslim, for custody cannot be given to a kaafir. Being of sound mind, for custody cannot be given to one who is insane or mentally deficient. Being an adult, for custody cannot be given to a minor. Being able to bring them up properly, for custody cannot be given to one who will be negligent. Ibn al-Qayyim said: No custody can be given to a kaafir over a Muslim for two reasons: 1 – The one who is given custody of a child will be keen to bring him up in his religion and to teach him about it, and after he grows up it will be difficult for him to change. He may change him from the natural disposition of man with which Allaah has created His slaves, and after that he may never come back to it, as the Prophet (peace and blessings of Allaah be upon him) said: “Every child is born in a state of fitrah (natural disposition of man), then his parents make him into a Jew or a Christian or a Magian.” There is no guarantee that the one who has custody will not turn a Muslim child into a Jew or Christian. If it is said that the hadeeth only applies to the parents, 203

Jurisprudence and Islamic Rulings

we should say that the hadeeth refers to the usual situation, which is that a child usually grows up with his parents, but if one or both are lost, then the child’s guardian among his relatives takes their place. 2 – Allaah has severed the ties of closeness between Muslims and kaafirs, and has made the Muslims the close friends of one another, and the kaafirs the close friends of one another. Custody is one of the strongest reasons for creating close bonds, which Allaah has severed between the two groups. Zaad al-Ma’aad, 5/459. And Allaah knows best. Islam Q&A (www.islam-qa.com) 8189: Who has more right to custody in Islam? Question: After a marriage that lasted for a few years, a man divorced his wife and tried to take the child from her. She is asking who has more right to custody of the child, her or her exhusband? Especially since she is going to travel to live with her family in another city. Answer: Praise be to Allaah. Women have more right to custody of children than men; in principle custody belongs to them, because they are more compassionate and more kind, and they know better how to raise small children, and they are more patient in dealing with the difficulties involved. The mother has more right to custody of her child, whether it is a boy or a girl, so long as she does not re-marry and so long as she meets the conditions of custody. This is according to scholarly consensus. 204

Transactions - Part 5

The conditions of custody are: being accountable (i.e., an adult of sound mind etc.), being free (as opposed to being a slave), being of good character, being a Muslim if the child concerned is a Muslim, and being able to fulfil all obligations towards the child. The mother should not be married to a person who is a stranger (i.e., not related) to the child. If one of these conditions is not fulfilled and there is an impediment such as insanity or having remarried, etc., the woman forfeits the right to custody, but if that impediment is removed, then the right to custody is restored. But it is best to pay attention to the interests of the child, because his rights come first. The period of custody lasts until the age of discretion and independence, i.e., until the child is able to discern what is what and is independent in the sense that he can eat by himself, drink by himself, and clean himself after using the toilet, etc. When the child reaches this age, the period of custody ends, whether the child is a boy or a girl. That is usually at the age of seven or eight. With regard to the effect of travelling on transferring custody, if the parents have separated and are disputing custody, any of the following scenarios may apply to their travelling: 1 – If one of the parents wants to travel without moving, i.e., he or she intends to come back, then the parent who is staying put has more right to the child. 2 – If one of them wants to travel for the purpose of settling there, and the new city or the route is dangerous, then the parent who is staying put has more right to the child. 3 – If one of them wants to move and settle within the same city, and the city and the route is safe,the father has 205

Jurisprudence and Islamic Rulings

right to the child than the mother, regardless of whether the one who is moving is the father or the mother. 4 – If both parents want to travel to the same place, then the mother should retain custody. 5 – If the place is nearby so that the father and child may see one another every day, then the mother should retain custody. When the child reaches the age of independence, the period of custody comes to an end, and the period of kafaalah or sponsorship of the young begins, which lasts until the child reaches adolescence or in the case of a girls, starts her periods. Then the period of sponsorship ends and the child is free to make his own choices. Women’s rights to sponsor children. It appears from the comments of the fuqaha’ that women have the right to sponsor children in general, and that mothers and grandmothers in particular have this right. But the scholars differed as to who has more right to sponsorship if the parents are in dispute and are both qualified to sponsor the child. The Maalikis and Zaahiris think that the mother has more right to sponsorship of the child, whether it is a boy or a girl. The Hanbalis think that boys should be given a choice, but the father has more right in the case of a girl. The Hanafis think that the father has more right in the case of a boy and the mother has more right in the case of a girl. Perhaps the correct view is that the child should be given a choice if the parents are disputing and they both fulfil the conditions for sponsorship. From Wilaayat al-Mar’ah fi’l-Fiqh al-Islami, p. 692 (www.islam-qa.com)

206

Transactions - Part 5

5234: Who has more right to custody of the child – the father or the mother? Question: My question is as follows: I married a sister who had a child with her husband before me. The little brother is currently three years old. If their is any evidence to show clearly my wife’s right to visitation. And the behavior of the Sahaabah and their implimention of the hadeeth,”And the women has more right unless she remarries.” How did those men who took custody of the children give their former wife her right to the child. Please help us we are truly being oppressed Answer: Praise be to Allaah. The best way for a child to be brought up is with both of his parents, because if he is cared for by both this will strengthen him physically, enhance his intellectual development, keep his soul pure and prepare him for life. If it so happens that the parents separate, then the mother has a greater right to custody than the father, unless there is reason not to give priority to the mother or there is a reason to give the child the choice in the matter. The reason why the mother is given priority is that she is the primary caregiver and is the one who breastfeeds the child; she is also better able to care for the child and take care of him. She has more patience than a man in this regard, and has more time than he does, so the mother is given priority in the best interests of the child.

207

Jurisprudence and Islamic Rulings

It was reported from ‘Abd-Allaah ibn ‘Umar that a woman said, “O Messenger of Allaah, my womb was a container for this son of mine and my lap was a haven for him, and he drank from my breast, but his father is claiming that he should take him from me.” The Prophet (peace and blessings of Allaah be upon him) said: “You have more right to him (to custody of him) so long as you do not remarry.” (Narrated by Ahmad, 2/182; Abu Dawood, 2276; al-Haakim, 2/225. Classed as Saheeh by alHaakim). Yahyaa ibn Sa’eed said: “I heard al-Qaasim ibn Muhammad said: ‘ ‘Umar ibn al-Khattaab had a wife from among the Ansaar who bore him ‘Aasim ibn ‘Umar, then ‘Umar divorced her. ‘Umar came to Quba’ and found his son ‘Aasim playing in the courtyard of the mosque. He took him by the arm and seated him in front of him on his riding-animal, but the child’s grandmother caught up with him and fought with him over the child until they went to Abu Bakr al-Siddeeq. ‘Umar said, ‘(He is) my son!’ and the woman said, ‘(He is) my son!’ Abu Bakr said: ‘Leave them alone,’ and ‘Umar did not answer back.” (Narrated by Maalik in al-Muwatta’, 2/767; al-Bayhaqi, 8/5). Ibn ‘Abd al-Barr said: this hadeeth is well known with a variety of isnaads, complete and incomplete, and is accepted by the scholars. According to some reports, [Abu Bakr] said: the mother is more compassionate, more kind, more merciful, more loving and more generous, and she has more right to her child unless she remarries. Abu Bakr’s description of the mother as being more compassionate and more kind is the reason why the mother has more right to the custody of her young child. And Allaah knows best. (See Fiqh al-Sunnah, 2/289-290) (www.islam-qa.com) 208

Transactions - Part 5

4038: Ruling on aborting or caring for a child whose mother has AIDS Question: Is it permissible for a mother who has AIDS to have an abortion if she gets pregnant? Does she have the right to take care of the child? Is it permissible for either spouse to nullify the nikaah (marriage contract) if it is discovered that the other has AIDS? Answer: Praise be to Allaah. Firstly: abortion in the case of a mother who has AIDS: Because AIDS is not usually transmitted by a mother to the foetus until the later stages of pregnancy – after the soul has been breathed into the child – or during delivery, it is not permissible according to sharee’ah for her to abort the foetus. Secondly: a mother with AIDS taking care of her healthy child and breastfeeding him: Because current medical knowledge indicates that there is no definite risk to the child from a mother who has AIDS, because the way she deals with him is the ordinary way of mixing with people, from the point of view of sharee’ah, there is no reason why the mother should not take care of her child and breastfeed him, so long as there is no medical report to state that she should not do so. Thirdly: the right of the healthy spouse to ask for separation from a spouse who has AIDS: The wife has the right to demand separation from a 209

Jurisprudence and Islamic Rulings

husband who has AIDS on the grounds that AIDS is a contagious disease that is transmitted primarily through sexual contact. (Majma’ al-Fiqh al-Islami, pp. 204-206) (www.islamqa.com)

210

Transactions - Part 5

Chapter 5 Transactions Adultery/fornication and Homosexuality 9292: Was Maa’iz married? Question: Was Ma’iz ibn Malik married or unmarried and if he was a bachelor, why was he stoned? I ask this because I have read that he was not married and was stoned for persistent fornication. However, there are other ahadith about “a man from Bani Aslam” which match the case of Ma’iz (who was from the Aslam) in every detail but do not give the name of the man. Was this man Ma’iz?. Answer: Praise be to Allaah. The ahaadeeth which tell the story of Maa’iz (may Allaah be pleased with him) and are narrated in al-Saheehayn were narrated through numerous isnaads. In some of them his name is given as Maa’iz, and in these it does not say that he was married. And in some he is mentioned by the name of his tribe – “a man from Aslam” – and in these it says that he was married. The context of the ahaadeeth is the same which makes us certain that they are speaking of the same story, which is the story of Maa’iz (may Allaah be pleased with him) and that he was married. This is stated in the text of one hadeeth which is narrated by al-Bayhaqi as we shall see below. There follow some of the reports: 211

Jurisprudence and Islamic Rulings

According to the version narrated by Muslim, they took Maa’iz to the Harrah, and this report states his name. According to a version narrated by al-Bukhaari, they stoned a man from (the tribe of) Aslam – and Maa’iz was a man from the tribe of Aslam as we shall see in the hadeeth from Abu Sa’eed below – so they took him to the Harrah. We also draw your attention to the similarity between the two hadeeth which both say that the Prophet (peace and blessings of Allaah be upon him) turned away from him four times, etc. This makes us certain that the two hadeeths are telling the story of the same man. Based on that, it says in the report narrated by al-Bukhaari that he was married. The two reports are as follows: (a) Muslim (1694) narrated: From Abu Sa’eed: that a man called Maa’iz ibn Maalik came to the Messenger of Allaah (peace and blessings of Allaah be upon him) and said: “I have committed adultery. Carry out (the hadd punishment) on me.” The Messenger of Allaah (peace and blessings of Allaah be upon him) ignored him several times, then he asked his people (about him). They said: “We do not know of anything wrong with him, except that he has committed some crime and he thinks that he will not be able to relieve himself of its burden unless the hadd punishment is carried out on him.” So he went back to the Prophet (peace and blessings of Allaah be upon him) and he commanded us to stone him. So we took him out to Baqee’ al-Gharqad and we did not tie him up or dig a hole for him. We stoned him with bones, clods and pebbles. He ran away and we ran after him until he came to ‘Arad al-Harrah (a place in Madeenah), where he stopped, and we stoned him with the rocks of the Harrah until he stopped moving (i.e., died). (b) The report narrated by al-Bukhaari (4969): It was narrated from Jaabir that a man from (the tribe of) 212

Transactions - Part 5

Aslam came to the Prophet (peace and blessings of Allaah be upon him) when he was in the mosque and he said, “I have committed adultery.” The Prophet (peace and blessings of Allaah be upon him) turned his face away from him. The man came to that side to which the Prophet had turned his face, and testified against himself four times. The Prophet (peace and blessings of Allaah be upon him) said, “Are you mad? Are you married?” He said, “Yes.” So he commanded that he be stoned in the Musalla (Eid prayer place). When the stones troubled him, he ran away, until he was caught in al-Harrah and killed. And it was narrated that Abu Hurayrah said: A man from (the tribe of Aslam) came to the Messenger of Allaah (peace and blessings of Allaah be upon him) when he was in the mosque and called him. He said, “O Messenger of Allaah, This man has committed zina,” meaning himself. [The Prophet (peace and blessings of Allaah be upon him)] turned his face away from him. The man came to that side to which the Prophet had turned his face, and said, “O Messenger of Allaah, this man has committed zina.” The Prophet (peace and blessings of Allaah be upon him) turned his face to the other side, and the man came to that side, and said the same thing. When he had testified against himself four times, the Prophet called him and said, “Are you mad?” He said, “No.” The Prophet (peace and blessings of Allaah be upon him) said, “Take him away and stone him to death.” And he was married. When the stones troubled him, he ran away, but we caught up with him at al-Harrah and stoned him to death (there).” Narrated by al-Bukhaari, 4970 This is also stated clearly in Sunan al-Bayhaqi: It was narrated from Jaabir from the Messenger of Allaah (peace and blessings of Allaah be upon him): a man from (the tribe of) Aslam testified against himself four times 213

Jurisprudence and Islamic Rulings

in his presence, admitting zina, so he ordered that he be stoned, as he was married. He said: they said that that was Maa’iz. Sunan al-Bayhaqi al-Kubra, 8/218 Al-Haafiz ibn Hajar stated in Fath al-Baari that these ahaadeeth tell the story of one man, namely Maa’iz (may Allaah be pleased with him). The phrase “a man from Aslam” means a man from the famous tribe of Banu Aslam. The name of this man was Maa’iz ibn Maalik as we shall see below; he was named as such by Ibn ‘Abbaas (may Allaah be pleased with him). Al-Haafiz also said: The hadeeth which says that the Prophet (peace and blessings of Allaah be upon him) stoned Maa’iz, who was married, appears in al-Saheehayn from Abu Hurayrah. He said to him: “Are you married?” and he said, “Yes.” This was also narrated by al-Bukhaari from Jaabir. Al-Diraayah fi Takhreej Ahaadeeth al-Hidaayah, 2/96. These ahaadeeth when taken together make us certain that when Maa’iz was stoned, he was married. Maa’iz was not stoned because he frequently committed the sin of zina; there is no evidence to indicate that Maa’iz was one of those who frequently commit zina. The previously-married person who commits zina deserves to be stoned, whether he got married and divorced, or his wife passed away, or he is still married. There is no difference between one who commits zina once and one who commits this sin repeatedly. Whoever has been previously married must be stoned. In the case 214

Transactions - Part 5

of one who has not been previously married, the hadd punishment is one hundred lashes and exile for one year. And Allaah knows best. Islam Q&A (www.islam-qa.com) 39770: Ruling on being intimate with a non-mahram woman without intercourse Question: What is the ruling on being intimate with a non-mahram woman without intercourse in the vagina? Is anal intercourse regarded as sodomy?. Answer: Praise be to Allaah. Firstly: It is by Allah’s wisdom that when He forbids a thing He forbids the things that lead to it, because indulging in things that may lead to haraam may make the heart inclined towards it, in such a way that the individual develops a psychological conflict between falling into this sin or the suffering that results from standing in the middle of the road, so that he is not shunning the haraam thing entirely, with the peace of mind that comes from keeping away from it, nor is he committing the sin and fulfilling the desires of his self that is inclined towards evil. In most cases of this type, the person will fall into major sins that he thought he would never commit, major sins that corrupt his religious and worldly affairs, ruin his life, and destroy the blessing in his wealth and children, as a befitting 215

Jurisprudence and Islamic Rulings

punishment for his sin, because he moved away from his Lord and transgressed His sacred limits, and did not care that Allaah was watching him and was aware of what he was doing. The wise man is the one who is not careless about things that lead to real disasters that affect his religious commitment, which is a man’s capital and comes before any worldly consideration. The one who thinks about this question will realize that it is impossible for a man to reach that level of evil and then be able to control himself and refrain from falling into that great sin, which is as nothing compared to the anger and wrath of Allaah and the corruption that it causes, all just for the sake of the short-lived pleasure that the sinner is trying to achieve, which will be followed by never-ending regret. The Muslim has to understand things as they are and what they lead to, and not be tempted by the things that the Shaytaan makes attractive, or be deceived when the Shaytaan tries to make him think of evil actions as insignificant as a trick to make people join his party of losers. He has to fear Allaah his Lord in private and in public, and know that Allaah sees him and knows his intentions and his actions, as Allaah says (interpretation of the meaning): “Allaah knows the fraud of the eyes, and all that the breasts conceal” [Ghaafir 40:19] He should remember that what is with Allaah is better and more lasting, and that the Hereafter and its blessings are better for him than this world, and that the reward for being patient in abstaining from evil actions is Paradise as vast as the heavens and the earth, in which there is whatever a person could want of absolute and untainted pleasure.

216

Transactions - Part 5

For more information on the ruling please see question no. 27259 Secondly: Anal intercourse, if done with a man, is homosexuality which is condemned in the Qur’aan and Sunnah. It was one of the causes of the destruction of a nation, namely the people of Loot, the Prophet of Allaah. With regard to anal intercourse with a woman: if this is with one’s wife, it is not permissible, and is known as “lesser sodomy”, so how about if it is with a woman who is not permissible for him? (a) What was narrated concerning sodomy: Ibn Hazam said: The action of the people of Loot is a major sin and a forbidden immoral action, like eating pork, dead meat and blood, drinking alcohol, committing adultery, and all other sins. Whoever regards it as permissible or regards any of the things we have mentioned as permissible is a kaafir and a mushrik, whose blood may be shed and whose wealth may be seized. Al-Muhalla, 12/389 Ibn Qudaamah said: The scholars are unanimously agreed that sodomy is forbidden. It was condemned by Allaah in His Book, and by the Messenger of Allaah (peace and blessings of Allaah be upon him). Allaah says (interpretation of the meaning): “And (remember) Loot (Lot), when he said to his people: ‘Do you commit the worst sin such as none preceding you has committed in the ‘Aalameen (mankind and jinn)? 217

Jurisprudence and Islamic Rulings

Verily, you practise your lusts on men instead of women. Nay, but you are a people transgressing beyond bounds (by committing great sins)’” [al-A’raaf 7:80] And the Prophet (peace and blessings of Allaah be upon him) said: “May Allaah curse those who do the deed of the people of Loot, may Allaah curse those who do the deed of the people of Loot, may Allaah curse those who do the deed of the people of Loot.” Al-Mughni, 9/59 Ibn al-Qayyim narrated from his shaykh Ibn Taymiyah and from others that there was consensus among the Sahaabah that the one who does the deed of the people of Loot should be put to death, but they differed as to how that should be done. Zaad al-Ma’aad, (5/40). For more details on the ruling see also question no. 10050. (b) What was narrated concerning anal intercourse with a woman: Anal intercourse with a woman is a major sin, and the Prophet (peace and blessings of Allaah be upon him) cursed the one who does that. Abu Dawood (2162) narrated that Abu Hurayrah said: The Messenger of Allaah (peace and blessings of Allaah be upon him) said: “Cursed is the one who has intercourse with his wife in her back passage.” Classed as hasan by al-Albaani in Saheeh Abi Dawood. This curse applies to one who has anal intercourse with his wife, so how about if the woman is a stranger (non-mahram) to him? Al-Tirmidhi (135) narrated from Abu Hurayrah that the 218

Transactions - Part 5

Prophet (peace and blessings of Allaah be upon him) said: “Whoever has intercourse with a menstruating woman or with a woman in her back passage, or who goes to a soothsayer, has disbelieved in that which was revealed to Muhammad (peace and blessings of Allaah be upon him).” Classed as saheeh by al-Albaani in Saheeh al-Tirmidhi. If a man and wife agree to anal intercourse and do not stop after being punished (with a ta’zeer punishment), then they are to be separated. Shaykh al-Islam Ibn Taymiyah was asked about a man who has intercourse with his wife in her back passage. He replied: Having anal intercourse with a woman is haraam, according to the Qur’aan and Sunnah, and this is the view of the majority of earlier and later scholars. Indeed, this is “lesser sodomy”. It was proven that the Prophet (peace and blessings of Allaah be upon him) said: “Allaah is not too shy to tell the truth. Do not have intercourse with women in their back passages.” And Allaah says (interpretation of the meaning): “Your wives are a tilth for you, so go to your tilth, when or how you will” [al-Baqarah 2:223] The tilth (harth) is the place from which the child is born [the vagina], because the tilth is the place of planting and sowing. The Jews used to say that if a man had intercourse with his wife from behind, the child would be born with a squint, then Allaah revealed this verse, and Allaah allowed the man to have intercourse with his wife in all positions, so long as it is in the vagina only. Whoever has intercourse with her in her back passage, and she obeys him in that, they should both be punished, and if they do 219

Jurisprudence and Islamic Rulings

not stop, then they should be separated, as an immoral man and the person with whom he commits immoral actions should be separated, and Allaah knows best. Al-Fataawa al-Kubra, 3/104, 105 With regard to having intercourse with a non-mahram woman in her back passage, the scholars differed as to whether this is zina (fornication) or sodomy. See al-Mabsoot, 9/77; al-Faakihah al-Dawaanah, 2/209; Mughni al-Muhtaaj, 5/443; al-Insaaf, 10/177; al-Furoo’, 6/72 The view favoured by Shaykh al-Sa’di (may Allaah have mercy on him) is that having intercourse with a nonmahram woman in her back passage is considered to be zina (fornication). He said: Zina means having an unlawful sexual relationship in the front passage or the back passage. Manhaj al-Saalikeen, p. 239. We ask Allaah to keep us safe from evil and to purify our hearts of evil thoughts, and to help us to be steadfast in adhering to His religion and obeying His commands. And Allaah knows best. Islam Q&A (www.islam-qa.com) 27176: He wants to repent from homosexuality and needs help Question: I am a very serious muslim who reverted to islam many years ago. i was sexually abused as a child and after that, i am attracted to males as well as females. it is something that i hate within myself, but i don’t know how to change 220

Transactions - Part 5

it. i don’t commit the actual sin often, but i do it sometime. after i do it, i hate it as i know ALLAH hates such perversion. the problem is that i am unable to help myself. i try and try to change, but i am unable to change. i beg and continue to beg ALLAH for help. i have also confessed in front of muslims seeking help, and i have been in therapy. the main thing is that i love ALLAH and the sunnah, and everything else in my life reflects this love. i am constantly striving for the pleasure and nearness of ALLAH. please please please help me. since i am plagued with this sickness, i understand why the sharia mandates that death is the punishment for homosexuality. i am potentially big and serious problem within the ummah. as long as i am alive, i may commit this perversive act. all of my friends are ,uslim and all of them are serious muslims like me. the shaitan may whisper to us and use me to detroy me and a friend’s iman. please help me. i am ready to go anywhere i need to go so that i can be subjected to the beautiful and complete sharia of ALLAH. i don’t want to commit this sin anymore, and i don’t want to be a threat to any of ALLAH’s servants. please help me soon. i don’t know where else to turn. Answer: Praise be to Allaah. We will discuss four points with you and no more than that, and we hope that you will read them carefully. These four points are: the abhorrent nature of the sin of homosexuality; the damaging effects it has on health; the greatness of Allaah’s mercy to those who repent; and ways of dealing with this problem. 1 – The abhorrent nature of the sin of homosexuality Ibn al-Qayyim said concerning the people of Loot: 221

Jurisprudence and Islamic Rulings

Those who support the first view – who are the majority of the ummah, and more than one narrated that there was consensus among the Sahaabah on this point – said that there is no sin that causes more corruption than the sin of homosexuality. It is second only to the sin of kufr, and may be greater than the sin of murder, as we shall see below in sha Allaah. They said: Allaah did not test anyone with this major sin before the people of Loot, and He punished them with a punishment that he did not send upon any other nation. He sent upon them various kinds of punishment: they were destroyed, their houses were turned upside down, the earth swallowed them up, they were pelted with stones from the sky, their eyes were blinded, they were tormented and their torment was made ongoing. So they were punished severely in a way that no other nation was punished, and that was because of the evilness of this crime which almost causes the earth to shake when it is done on it; and the angels flee to the ends of the heavens and the earth when they witness it, fearing that the punishment may come upon its people and strike them too; and the earth cries out to its Lord, and the mountains almost collapse. Killing the one to whom it is done would be better for him than having intercourse with him, for if a man has intercourse with him he corrupts him in such a way that life is no longer worth living, unlike killing him in a real sense, in which case he would be a martyr who had been wronged, which may be of benefit to him in the Hereafter. And he said: The companions of the Messenger of Allaah (peace and blessings of Allaah be upon him) agreed unanimously that he should be put to death, and none of them disagreed about that. Rather they differed with regard to the manner in which he should be put to death. Some of the people 222

Transactions - Part 5

thought that the difference of opinion had to do with whether [the homosexual] should be executed, and they narrated it as being a point of dispute among the Sahaabah, whereas in fact it was a matter on which there was consensus. Whoever ponders the verse in which Allaah says (interpretation of the meaning): “And come not near to unlawful sex. Verily, it is a Faahishah (i.e. anything that transgresses its limits: a great sin, and an evil way that leads one to hell unless Allaah Forgives him)” [al-Isra’ 17:32] And the verse in which He says concerning homosexuality (interpretation of the meaning): “And (remember) Loot (Lot), when he said to his people: “Do you commit the worst sin such as none preceding you has committed in the ‘Aalameen (mankind and jinn)?” [al-A’raaf 7:80] will see a difference between the two. For Allaah mentioned zina without the definite article, indicating it is a kind of evil action, but He mentioned homosexuality (liwaat) with the definite article al-, which means that it encompasses all aspects of faahishah or evil. Then Allaah confirms that and states that no one in the ‘aalameen (mankind and jinn) ever did this before them, as He says, “such as none preceding you has committed in the ‘Aalameen (mankind and jinn)”. Then He emphasizes that even further by mentioning it a blunt manner that demonstrates the abhorrent nature of this action, which is a man having intercourse with a man as a man has intercourse with a woman, and He says (interpretation of the meaning): 223

Jurisprudence and Islamic Rulings

“Verily, you practise your lusts on men instead of women” [al-A’raaf 7:81] Then Allaah confirms how abhorrent that is by stating that the homosexuals distort the nature with which Allaah has created men, which is to desire women rather than men. They have twisted the natural order and they approach men with desire rather than women. Hence Allaah turned their houses upside down and their hearts likewise, and they were turned upside down, as a punishment. Then Allaah reiterated the abhorrence of their actions by judging them to have transgressed all bounds as He says (interpretation of the meaning): “Nay, but you are a people transgressing beyond bounds (by committing great sins)” [al-A’raaf 7:81] Think about this: was this, or anything similar, said concerning adultery? And Allaah reiterated the abhorrent nature of their action when He said (interpretation of the meaning): “and We saved him from the town (folk) who practised AlKhabaa’ith (evil, wicked and filthy deeds)” [al-Anbiya’ 21:74] Then Allaah the All-Knowing condemned them further by describing them as being extremely evil, as He said (interpretation of the meaning): “Verily, they were a people given to evil, and were Faasiqoon (rebellious, disobedient to Allaah)” [al-Anbiya’ 21:74] 224

Transactions - Part 5

And He described them as mufsidoon (evildoers etc), as He said (interpretation of the meaning): “My Lord! Give me victory over the people who are Mufsidoon (those who commit great crimes and sins, oppressors, tyrants, mischiefmakers, corrupters).” [al-‘Ankaboot 29:30] And He called them zaalimoon (wrongdoers), in the words that the angels said to Ibraaheem (peace be upon him) (interpretation of the meaning): “Verily, we are going to destroy the people of this [Loot (Lot’s)] town (i.e. the town of Sodom in Palestine); truly, its people have been Zaalimoon [wrongdoers, polytheists disobedient to Allaah, and belied their Messenger Loot (Lot)]” [al-‘Ankaboot 29:31] Think about those who have been punished in these ways, and whom Allaah has condemned in such terms. And he said: Pleasure ceased and was followed with loss; desires ended and led to misery; they enjoyed themselves for a little while, but will be punished for a long time. They grazed on filth, and they suffer a painful torment. They were intoxicated with those desires, but they have awoken in the abode of the tormented. They feel the greatest regret, by Allaah, at the time when regret is to no avail. They weep for what they did before, with tears of blood. If only you could see the highest and lowest of this group, with fire coming out from their faces and bodies when they are in the depths of Hell, drinking cups of boiling water instead of delightful drinks, being told as they are being dragged on their faces, “Taste of that which you used to earn.” 225

Jurisprudence and Islamic Rulings

“Taste you therein its heat and whether you are patient of it or impatient of it, it is all the same. You are only being requited for what you used to do” [al-Toor 52:16 – interpretation of the meaning] Adapted from al-Jawaab al-Kaafi, pp. 240-245. 2 – The damaging effects it has on health: Dr Mahmoud al-Hijaazi said in his book al-Amraad alJinsiyyah wa’l-Tanaasuliyyah (Sexual and genital diseases), when discussing some of the dangers to health caused by committing sodomy: The diseases which are transmitted by way of sexual perversion (homosexuality) are: 1. AIDS, which causes loss of acquired immunity and usually leads to death. 2. Viral inflammation of the liver 3. Syphilis 4. Gonorrhea 5. Herpes 6. Bacterial inflammation of the anus 7. Typhoid 8. Amoebiasis 9. Intestinal worms 10. Anal warts 11. Scabies 12. Pubic lice (“crabs”) 226

Transactions - Part 5

13. Cytomegalovirus that may lead to anal cancer 14. Genital-lymphatic pustules 3 – The greatness of Allaah’s mercy to those who repent From the above it is clear that this immoral action is seriously wrong and abhorrent, and leads to harmful consequences. Nevertheless the door is open for sinners to repent, and Allaah rejoices at their repentance. Think about what Allaah says (interpretation of the meaning): “And those who invoke not any other ilaah (god) along with Allaah, nor kill such person as Allaah has forbidden, except for just cause, nor commit illegal sexual intercourse and whoever does this shall receive the punishment. The torment will be doubled to him on the Day of Resurrection, and he will abide therein in disgrace; Except those who repent and believe (in Islamic Monotheism), and do righteous deeds; for those, Allaah will change their sins into good deeds, and Allaah is OftForgiving, Most Merciful” [al-Furqaan 25:68-70] By thinking about the words, “Allaah will change their sins into good deeds”, you will see how great is the bounty of Allaah the Almighty. The scholars said that there are two meanings of the word “change”: (i) Bad attributes will be turned into good attributes, such as their shirk being turned into faith, their adultery into chastity, their lying into honesty, their treachery into trustworthiness, and so on.

227

Jurisprudence and Islamic Rulings

(ii) The bad deeds that they have done will be turned into good deeds on the Day of Resurrection. So what you must do is repent to Allaah and know that your coming back to Him is better for you and your family and your brothers and the entire society. Remember that life is short, and that the Hereafter is better and more lasting. Do not forget that Allaah destroyed the people of Loot in a way that He did not destroy any other nation. 4 – Ways of dealing with this problem (i) Keeping away from the things that make it easy for you to fall into this sin and remind you of it, such as: - Letting your gaze wander and looking at women or movies - Being alone with any man or woman (ii) Always keeping yourself busy with things that will benefit you in your religious or worldly affairs, as Allaah says (interpretation of the meaning): “So when you have finished (your occupation), devote yourself for Allaah’s worship” [al-Sharh 94:7] So when you have finished with some worldly task, then strive to do something that will benefit you in the Hereafter, such as remembering Allaah (dhikr), reading Qur’aan, seeking knowledge, listening to useful tapes, etc. When you finish one act of worship then start another, and if you finish one worldly task then start another… and so on, because if you do not keep your nafs (self) busy with good things, it will keep you busy with bad

228

Transactions - Part 5

things. So do not give your nafs any opportunity or spare time to think about this evil action. (iii) Compare the pleasure you feel when committing this sin with the regret, anxiety and confusion that follow it and stay with you for a long time, and then the torment that awaits the one who does that in the Hereafter. Do you think that any wise man would give precedence to this pleasure which vanishes after an hour over the regret and torment that follow? You can become more convinced of this if you read the book by Ibn al-Qayyim, al-Jawaab al-Kaafi li man sa’ala ‘an al-Dawa’ al-Shaafi. He wrote it for people in a situation like yours. May Allaah make things easy for us and for you. (iv) The wise man does not give up a thing that he loves except for something that he loves more, or for fear of something he dislikes. This evil action will cause you to lose the blessings of this world and the Hereafter, to lose Allaah’s love for you, and will incur the anger, wrath and punishment of Allaah. Compare the good you will lose and the evil that will come to you because of this evil action. The wise man will see which should take precedence. (v) More important than all of the above is making du’aa’ and seeking the help of Allaah to ward off this evil from you. Make the most of the times and situations in which prayers are answered, such as sujood (prostration), before the tasleem at the end of prayer, the last third of the night, when it is raining, when travelling, when fasting, and when breaking the fast. We ask Allaah to guide you and to accept your repentance, and to help you to avoid bad deeds and bad attitudes. And Allaah knows best. Islam Q&A (www.islam-qa.com) 229

Jurisprudence and Islamic Rulings

33591: An illegitimate daughter is asking, Whose daughter am I? Question: I’m an illegitimate child. I was conceived before my mother became Muslim. She became Muslim a few days before my birth. My parents married when I was 10 months old. My parents got divorced 2 years ago, after I disclosed sexual abuse by him. I have used my father’s name since I was born and he has always accepted paternity of me. Do I need to change my name to my mother’s name? I am 14 year old and have five siblings, all with my father’s name. I read the answers on this site and all seemed to say that I should, but one answer by Shaykh ‘Abd-Allah ibn Jibreen seemed to say the opposite. (Question Reference Number 5967) He stated that if the father accepts paternity, it is permissible to retain his name. Please clarify this issue for me. Answer: Praise be to Allaah. Firstly: we confirm that the illegitimate child has nothing to do with his parents’ crime, and that he has all the same rights as any other Muslim, male or female. He must also fear Allaah so that he may become one of the people of Paradise with whom Allaah is pleased. Secondly: the scholars differed as to whether or not the child may be attributed to his adulterous father, if the woman was not married. What that means is: if the woman was married and had a child six months after being married, then the child should 230

Transactions - Part 5

be attributed to the father, and he cannot deny the child unless he divorces his wife by means of li’aan. If a man claims that he committed zina with this woman and that this is his illegitimate child, no attention should be paid to him, according to scholarly consensus, because the Prophet (peace and blessings of Allaah be upon him) said, “The child is to be attributed to the husband and the adulterer deserves nothing.” Narrated by al-Bukhaari, 2053; Muslim, 1457. Ibn Qudaamah said: “The scholars were unanimously agreed that if a child is born to one man’s wife, and another man claims it is his child, the child is not to be attributed to the latter. The difference of opinion arises when a child is born outside of marriage.” If the woman is not married, and she has a child as a result of zina, and the zaani (adulterer, man who committed zina) claims it is his child, should the child be attributed to him or not? The majority of scholars are of the view that the child should not be attributed to him. It was narrated from al-Hasan, Ibn Sireen, ‘Urwah, alNakha’i, Ishaaq and Sulaymaan ibn Yassaar that the child should be attributed to him. This was also the view favoured by Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him). Ibn Qudaamah also narrated this view from Abu Haneefah. He said: “ ‘Ali ibn ‘Aasim narrated that Abu Haneefah said: If a man commits zina with a woman and she gets pregnant from him, I do not see anything wrong with him marrying her even though she is pregnant, so as to conceal her (sin), and the child will be his child.” (alMughni, 9/122). 231

Jurisprudence and Islamic Rulings

Ibn Muflih (may Allaah have mercy on him) said: Our shaykh [Ibn Taymiyah] favoured the view that a man may attribute to himself a child who is the result of zina with an unmarried woman. al-Furoo’, 6/625 Ibn Qudaamah (may Allaah have mercy on him) said: The illegitimate child should not be attributed to the zaani according to the majority of scholars, but al-Hasan and Ibn Sireen said: he may be attributed to the zaani if the hadd punishment has been carried out on him, and he may inherit from him. Ibraaheem said: He may be attributed to him if the hadd punishment of flogging has been carried out, or if he becomes the owner of the woman with whom he had intercourse. Ishaaq said: He may be attributed to him, and he quoted something similar from ‘Urwah and Sulaymaan ibn Yassaar. Shaykh al-Islam (Ibn Taymiyah) said: There are also two views among the scholars concerning the zaani claiming the child as his if the woman is not married. The Prophet (peace and blessings of Allaah be upon him) said: “The child is to be attributed to the husband and the adulterer deserves nothing.” So he said that the child belongs to the husband, not the zaani. But if the woman is not married then this hadeeth is not applicable. ‘Umar attributed children born in the jaahiliyyah to their fathers, but this is not the place to discuss this issue in detail. Al-Fataawa al-Kubra, 3/178 The majority of scholars quoted as evidence that the illegitimate child should not be attributed to the zaani the hadeeth narrated by Ahmad (7002), Abu Dawood (2265) and Ibn Maajah (2746) from ‘Amr ibn Shu’ayb from his father from his grandfather who said: “The Prophet (peace and blessings of Allaah be upon him) ruled that whoever is born to a slave woman who was not owned by his father, or (was born to) a free woman with whom (the father) 232

Transactions - Part 5

committed zina, then he cannot be attributed to him nor can he inherit, even if the one to whom he is attributed claims him as a son. He is the child of fornication whether his mother was a free woman or a slave.” This hadeeth was classed as hasan by al-Albaani in Saheeh Abi Dawood, and by al-Arna’oot in Tahqeeq al-Musnad. It was quoted as evidence by Ibn Muflih to support the view of the majority. The Prophet (peace and blessings of Allaah be upon him) ruled that the illegitimate child should not be attributed to the zaani and could not inherit from him, even if the zaani claimed him as his child. Undoubtedly attributing the child to a particular person is a serious matter on which many rulings of sharee’ah depend, such as matters of inheritance, who is forbidden for marriage (mahrams) and who are his relatives. The point is that the fatwa which says that the illegitimate child should not be attributed to the zaani is in accordance with the view of the majority of scholars. With regard to Shaykh Ibn Jibreen (may Allaah preserve him), perhaps he based his view on the other scholarly view which we have mentioned above. Based on the view of the majority, the illegitimate child – whether male or female – should not be attributed to the zaani, and should not be described as his child. Rather he should be attributed to his mother; he is a mahram for her and may inherit from her like all her other children. Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him) said: “With regard to the child who is born as a result of zina, he is the child of his mother, not of his father, because of the general meaning of the hadeeth in which the Prophet (peace and blessings of Allaah be upon him) said: ‘The 233

Jurisprudence and Islamic Rulings

child is to be attributed to the husband and the adulterer deserves nothing’ – i.e., this is not his child. This is what the hadeeth means. If the man marries her after repenting, then the child has been conceived before marriage and repentance and is not his child; he cannot inherit from the man who committed zina even if he claims him as his child, because he is not his legitimate child.” From Fataawa Islamiyyah, 3/370. In Fataawa al-Shaykh Muhammad ibn Ibraaheem (11/ 146) it says: The child who is created from the sperm of the zaani cannot be called the child of the zaani. And Allaah knows best. Islam Q&A (www.islam-qa.com) 26847: A book which includes lies against the Prophet (peace and blessings of Allaah be upon him) concerning the ruling on zina Question: I read in alkhilaph’s pumphlet regarding sying of holy prophet(ahadith)that some one asked prophet that I like a women at my work place, I love her ,can I have sex with that women,answer by prophet was yes. I feel the answer as written in that pumphlet is wrong but to certify that I would greatly value your opinion. Answer: Praise be to Allaah. 234

Transactions - Part 5

Firstly: This book called al-Khilaaf is not known; perhaps it is one of the books of the Raafidi Shi’ah, because they have a book by this name which they claim deals with matters of dispute between the Islamic sects. The Raafidi Shi’ah would not refrain from telling lies against the Prophet (peace and blessings of Allaah be upon him). Shaykh al-Islam Ibn Taymiyah described them as being “the worst liars among people and the worst in breaking promises.” Majmoo’ al-Fataawa, 28/484. And he also said in Minhaaj al-Sunnah al-Nabawiyyah (1/8) that they are the worst liars when it comes to transmitting reports, and the most ignorant of people in terms of reasoning. They believe reports which the scholars know are obviously false, and they reject well-known facts that have been passed down from generation to generation. With regard to the transmission of knowledge and the narrators of ahaadeeth and reports, they do not differentiate between lies, mistakes and ignorance or whether the narrator is of good character, has a sound memory and is known for his knowledge of the reports. In Minhaaj al-Sunnah (2/87) he also said: “Among the people who pray towards the qiblah you will not find any more ignorant than the Raafidi Shi’ah… they are the worst liars among people without a doubt… and they are the most hypocritical.” Secondly: With regard to the hadeeth you ask about, no rational person would doubt that it is falsely attributed to the Prophet (peace and blessings of Allaah be upon him), because how could the Prophet (peace and blessings of Allaah be upon him) permit zina (adultery, fornication) when it is well known in Islam that it is forbidden? Indeed 235

Jurisprudence and Islamic Rulings

the Prophet (peace and blessings of Allaah be upon him) forbade the things that may lead to zina, such as a man being alone with a non-mahram woman, shaking hands with her, careless mixing between men and women, and women speaking in a soft and gentle manner, etc. Hence Allaah says (interpretation of the meaning): “And come not near to unlawful sex. Verily, it is a Faahishah (i.e. anything that transgresses its limits: a great sin, and an evil way that leads one to hell unless Allaah Forgives him)” [al-Isra’ 17:32] Think about this: Allaah forbids us to come near to zina, which is more emphatic than simply saying do not do it, because this means that all the things that lead up to it or promote it are also forbidden. Tafseer al-Sa’di, p. 742. And Allaah says (interpretation of the meaning): “ And those who invoke not any other ilaah (god) along with Allaah, nor kill such person as Allaah has forbidden, except for just cause, nor commit illegal sexual intercourse and whoever does this shall receive the punishment. The torment will be doubled to him on the Day of Resurrection, and he will abide therein in disgrace; Except those who repent and believe (in Islamic Monotheism), and do righteous deeds; for those, Allaah will change their sins into good deeds” [al-Furqaan 25:68-70] This abhorrent immoral action (illegal sexual intercourse) is mentioned alongside associating others with Allaah and killing innocent souls, because it kills virtue, spreads evil, 236

Transactions - Part 5

destroys honour, mixes lineages, and other evil consequences and diseases which cause disintegration of nations and societies. It was narrated from Abu Hurayrah (may Allaah be pleased with him) that the Messenger of Allaah (peace and blessings of Allaah be upon him) said: “When the adulterer commits adultery he is not a believer.” Narrated by al-Bukhaari, 2475; Muslim, 57. Al-Bukhaari narrated (7047) from Samurah ibn Jundub that the Prophet (peace and blessings of Allaah be upon him) said, in a lengthy hadeeth in which he described different kinds of punishment in the grave: “… and we went on and came to something like a tannoor oven, whose top was narrow and its base was wide, in which there were screams and voices. We looked inside and saw naked men and women, to whom flames came from beneath. When those flames came to them, their voices became loud and they rose up until they almost came out, then when the flames died down they went back. I said to them [the two angels], ‘Who are these people?’… They said, ‘As for the naked men and women who were in something like a tannoor oven, they are the adulterers and adulteresses.’” Ahmad (21708) narrated that Abu Umaamah said: A young man came to the Prophet (peace and blessings of Allaah be upon him) and said, “O Messenger of Allaah, give me permission to commit zina.” The people turned to him to rebuke him, saying, “Shh, shh.” (The Prophet (peace and blessings of Allaah be upon him)) said, “Come here.” So he came close to him and he told him to sit down. He said, “Would you like that for your mother?” He said, “No, by Allaah, may I be sacrificed for you.” He said, “Nor do people like it for their mothers.” He said, “Would you like it for your daughter?” He said, “No, by 237

Jurisprudence and Islamic Rulings

Allaah, may I be sacrificed for you.” He said, “Nor do people like it for their daughters.” He said, “Would you like it for your sister?” He said, “No, by Allaah, may I be sacrificed for you.” He said, “Nor do people like it for their sisters.” He said, “Would you like it for your paternal aunt?” He said, “No, by Allaah, may I be sacrificed for you.” He said, “Nor do people like it for their paternal aunts.” He said, “Would you like it for your maternal aunt?” He said, “No, by Allaah, may I be sacrificed for you.” He said, “Nor do people like it for their maternal aunts.” Then he placed his hand on him and said, “O Allaah, forgive his sin, purify his heart, and guard his chastity.” And after that, this young man never did anything. Al-‘Iraaqi said in Takhreej Ahaadeeth al-Ihya’: Ahmad narrated this with a jayyid isnaad whose men are the men of saheeh. There are very many verses and saheeh hadeeth which state how repugnant this crime is and which describe the fate of those who do it, in this world and in the Hereafter. So how, after all that, can these ugly words be attributed to the Messenger of Allaah (peace and blessings of Allaah be upon him)? Moreover, this sinful liar says, “If this man is attracted to a woman at his place of work”. Did the companions of the Prophet (peace and blessings of Allaah be upon him), who were the best generation, have “places of work” in which men and women came together and mixed? The questioner and others should beware of these reprehensible and immoral misconceptions, and not pay any attention to them.

238

Transactions - Part 5

This liar who falsely attributes words to the Messenger of Allaah (peace and blessings of Allaah be upon him) indeed deserves to be included in the words of the Prophet (peace and blessings of Allaah be upon him) said: “Whoever tells lies against me deliberately, let him take his place in Hell.” Narrated by al-Bukhaari, 111; Muslim, 3. Islam Q&A (www.islam-qa.com) 26067: He hired a woman to serve him then he agreed with her that she would be his slave Question: Few years back, I needed a slave for comfort and support and to fulfill my jobs, I was able to pay the slave what they wanted and to comfort them too on their conditions. There was a Young Lady who agreed, on our conditions. My slave was only there when I needed her a bit like part employment she came over when I needed her and went away when not needed. We made a contract that she would serve me because she agreed and I agreed with my side. Hence, this young lady still lives in her parents home and is not marries she agreed I be her master so it gives me the rights to touch her and look at her. We spent a lot of time together and I freed her from the contracts then got married together. The point is that we get slaves from war time, but when will that come? Here she had agreed. And look after with the same standard of mine Is there any haram element in this situation because the master only touched someone he owned, so this cannot be zinna. 239

Jurisprudence and Islamic Rulings

-I would like to know the equities of slaves too -How do you own a slave and what is the sharee condition? -Can the master and slave have bodily contact and to what extent? -Is there an age difference limit, i.e. they both can’t be same age? -Can this kept secret or does everyone HAVE TO know? -What is the minimum age the master and slave can be? -IS SLAVES ARE ONLY AVAILABLE AT WAR-TIME, - IS THERE ANOTHER WAY OF OWNING A SLAVE? -Is it true our prophet (pbuh) owned many slaves, and called one ship? Answer: Praise be to Allaah. Some of the questions are repeated and interconnected. We will answer them all – in sha Allaah – in the following points. Firstly: What you did with the servant woman is haraam and is not permissible. A servant woman is not a slave woman whom it is permissible to touch and have intercourse with. A servant woman is free and is not permissible for you except through marriage, which is what you did, but unfortunately you did it late. The contract that existed between you and the servant woman was a contract of employment, which was to serve 240

Transactions - Part 5

you in your house. It was not a contract that permitted you to have intercourse with her. You say that she agreed that you would be her master and she let you touch her and look at her, and that you freed her from the contract, but this has no basis of validity in sharee’ah in the sense that you refer to. A free woman cannot become a slave unless she is a kaafir woman from a state that is at war with the Muslims and the Muslims have captured her. This does not apply in the case which you are asking about. Secondly: Slaves (men and women) may be taken in the wars that take place between Muslims and kaafirs, not in wars that are fought amongst the Muslims at times of tribulation. Islam limited the sources of slaves which existed before the mission of the Prophet (peace and blessings of Allaah be upon him) to just one source, namely slavery resulting from capturing prisoners from among the kuffaar, including women and children. Shaykh al-Shanqeeti (may Allaah have mercy on him) said: The reason why a person may be taken as a slave is his being a kaafir and waging war against Allaah and His Messenger. If Allaah enables the Muslims who are striving and sacrificing their lives and their wealth and all that Allaah has given them to make the word of Allaah supreme over the kaafirs, then He allows them to enslave the kuffaar when they capture them, unless the ruler chooses to free them or to ransom them, if that serves the interests of the Muslims. Adwa’ al-Bayaan, 3/387 Thirdly: The mujaahideen take possession of slave women as they take possession of the spoils of war. It is permissible for 241

Jurisprudence and Islamic Rulings

the one who gains possession of male or female slaves to sell them. In both cases – owning a slave through battle or through purchase – it is not permissible for a man to have intercourse with a slave woman until after she has had one menstrual cycle from which it may be established that she is not pregnant. If she is pregnant, then he must wait until she has given birth. It was narrated that Ruwayfi’ ibn Thaabit al-Ansaari said: I heard the Messenger of Allaah (peace and blessings of Allaah be upon him) say on the day of Hunayn: “It is not permissible for any man who believes in Allaah and the Last Day to irrigate the crop of another else – meaning to have intercourse with a woman who is pregnant. And it is not permissible for a man who believes in Allaah and the Last Day to have intercourse with a captured woman until he has established that she is not pregnant. And it is not permissible for a man who believes in Allaah and the Last Day to sell any booty until it has been shared out.” Narrated by Abu Dawood, 2158; classed as hasan by Shaykh al-Albaani in Saheeh Abi Dawood, 1890. Fourthly: It is permissible for there to be a physical relationship between a man and his female slave just as there is between a man and his wife, unless he marries her off to someone else, in which case it is not permissible for him to have intercourse with her because it is not permissible for a woman to be in an intimate relationship with two men at the same time. Fifthly: There are no limits with regard to the age difference between a man and his female slave, apart from the fact that it is not permissible for him to have intercourse with her until after she has become able for that. 242

Transactions - Part 5

Sixthly: The relationship between a man and his female slave should be announced publicly and not kept secret. That is because there are rulings that stem from this announcement, such as if they have children, and so as to ward off any suspicions that people who see them together may have concerning him and her. Seventhly: The Prophet (peace and blessings of Allaah be upon him) owned some male and female slaves, among whom were the following: Ibn al-Qayyim said: Zayd ibn Haarithah ibn Shuraaheel, the beloved of the Messenger of Allaah (peace and blessings of Allaah be upon him). He freed him and arranged his marriage to his freed slave woman Umm Ayman, and she bore him Usaamah. His other slaves include Aslam, Abu Raafi’, Thawbaan, Abu Kabshah Sulaym, Shaqraan (whose name was Saalih), Rabaah (who was Nubian), Yassaar (who was also Nubian and was killed by the ‘Arniyeen); Mid’am and Kirkirah (another Nubian) – these two were killed at Khaybar. They also included Anjashah al-Haadi and Safeenah ibn Farookh, whose real name was Mihraan, but the Messenger of Allaah (peace and blessings of Allaah be upon him) called him Safeenah (= “ship”) because they used to make him carry their luggage when they traveled, so he said, “You are a ship (anta safeenah).” Abu Haatim said that the Messenger of Allaah (peace and blessings of Allaah be upon him) freed him; someone else said that Umm Salamah freed him. The Prophet’s slaves also included Anasah, whose nickname was Abu Mashrah; Aflah; ‘Ubayd; Tahmaan – also known as Keesaan; Dhakwaan; Mihraan; Marwaan – although it was said that 243

Jurisprudence and Islamic Rulings

this was another name of Tahmaan, and Allaah knows best; Hunayn; Sandar; Fudaalah (who was Yemeni); Maaboor (who was a eunuch); Waaqid; Abu Waaqid; Qassaam; Abu ‘Usayb and Abu Muwayhabah. His female slaves included: Salma (Umm Raafi’); Maymoonah bint Sa’d; Khadrah; Radwa; Razeenah; Umm Dameerah; Maymoonah bint Abi ‘Usayb; Maariyah and Rayhaanah. Zaad al-Ma’aad, 1/114-116 Eighthly: It is rare nowadays to find slaves in the shar’i sense in which it is permissible to be intimate with them etc. That is because most of the Muslims have long since given up the obligation of jihad for the sake of Allaah, in addition to their position of weakness and humiliation before their kaafir enemies, so that many of the majority-Muslim nations have signed the protocol that expressly forbids slavery and strives to put an end to it, which was agreed upon in the United Nations in 1953. Based on that we must be very careful in examining any case where people are bought and sold as slaves, and we must also beware of the misinterpretation of the word amah (pl. imaa’) (= slave woman) which some new Muslims understand to mean that enslavement takes place simply by paying the woman some money and agreeing to have intercourse with her. This is like prostitution which is now widespread in some immoral places, night clubs and telephone sex services. We ask Allaah to help us and you to be patient with regard to matters of our religion and to protect us from falling into evil. And Allaah knows best. Islam Q&A (www.islam-qa.com) 244

Transactions - Part 5

624: Repenting From Adultery Question: Brother I don’t know what to do, but I have committed a great sin. I know the concept of confession does not exist in our beautiful religion, but I have committed fornication. I am trying to repent, and trying to ask Allah for his forgiveness. As I was reading Surah Noor, I found out that I can’t marry a chaste woman, what should I do. Please pray for me so Allah makes his punishments easy on me in the Hell fire. Answer: Al-hamdu lillaah. 1) Do not despair, for Allaah the Most Exalted and Glorified said (interpretation of the meaning): “Say: Oh my servants who have transgressed against their souls! Despair not of the mercy of Allaah, for Allaah forgives all sins; for He is oft-forgiving, most merciful.” [Surah 39,Verse 53] 2) Let your repentance be truly from your heart, and stay away from all sources of temptations. Also, perform many good deeds, as good deeds abrogate the bad ones. 3) If you repent to Allah, you are no longer described as a fornicator (zaani). Therefore, you can marry a chaste woman. 4) The believer has high hope and aspiration for the best from Allaah. He not only asks Allah for making his punishment easy in hellfire, but he also prays to God the Almighty to save him from Hell and award him with paradise for his repentance and good deeds. 245

Jurisprudence and Islamic Rulings

Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 21223: She wants to give up prayer as she feels shy before Allaah because she is committing zina Question: I know that zina is an immoral and evil action, and I feel too shy to stand before Allaah in prayer after doing ghusl for janaabah because of engaging in zina (unlawful sexual relations). I ask Allaah for forgiveness. Believe me, I do not feel happy and content in myself because of what I am doing, but I am trying to soothe my conscience. Should I go back to praying or not, whilst continuing to commit zina? Answer: Praise be to Allaah. Undoubtedly zina is one of the major sins, one of the worst crimes, one of the most evil and immoral of actions. Allaah says (interpretation of the meaning): “And come not near to unlawful sex. Verily, it is a Faahishah (i.e. anything that transgresses its limits: a great sin, and an evil way that leads one to hell unless Allaah Forgives him)” [al-Isra’ 17:32] “And those who invoke not any other ilaah (god) along with Allaah, nor kill such person as Allaah has forbidden, except for just cause, nor commit illegal sexual intercourse and whoever does this shall receive the punishment. 246

Transactions - Part 5

The torment will be doubled to him on the Day of Resurrection, and he will abide therein in disgrace” [al-Furqaan 25:68-69] Hence Allaah decrees a severe punishment in this world for those who commit zina, namely the hadd punishment. Allaah says, describing the punishment for the unmarried person who commits zina: “The fornicatress and the fornicator, flog each of them with a hundred stripes. Let not pity withhold you in their case, in a punishment prescribed by Allaah, if you believe in Allaah and the Last Day. And let a party of the believers witness their punishment.” [al-Noor 24:2 – interpretation of the meaning] But for the muhsan (one who is or has been married) who commits zina, the punishment is execution. It says in the hadeeth narrated by Imam Muslim in his Saheeh that the Prophet (peace and blessings of Allaah be upon him) said: “If a previously-married man (commits zina) with a previously-married woman, (the punishment is) one hundred lashes and stoning.” (al-Hudood 3199). Because of the abhorrence and obscenity of this action, even the monkeys are offended by it, and they carried out the hadd punishment of stoning on a monkey which committed zina, as was narrated in Saheeh al-Bukhaari from ‘Amr ibn Maymoon who said: “During the Jaahiliyyah I saw a monkey which had committed zina, so the other monkeys got together and stoned it, and I stoned it with them.” (al-Manaaqib, 5360). How can an adult, accountable Muslim whom Allaah has honored with Islam be content to stoop to the level of animals and beasts which, whenever their desire is provoked, they satisfy it however they want? The 247

Jurisprudence and Islamic Rulings

seriousness of this sin is not limited to punishment in this world only, rather the punishment in the Hereafter is far greater and far worse. According to a hadeeth narrated by Imam al-Bukhaari from Samurah ibn Jundub, the Prophet (peace and blessings of Allaah be upon him) said: “Two (angels) came to me last night, woke me up and set out with me… until we came to something like a tannoor (clay oven), in which there was shouting and voices. We looked inside and saw naked men and women, towards whom flames came from beneath them. When the flames reached them, they cried out. I said to them [the two angels], ‘Who are these people?’… They told me, ‘As for the men and women in the structure like a tannoor oven, they are the adulterers and adulteresses…’” (6525). If a person dies committing this sin, what will be his situation? What will he say to his Lord when he stands before Him for judgement?? Is this the way to give thanks for the never-ending, innumerable blessings of Allaah? Is this the way to give thanks for the blessings of good health? Do you think that Allaah does not see you when you are committing this great sin? Allaah says (interpretation of the meaning): “Truly, nothing is hidden from Allaah, in the earth or in the heaven” [Aal ‘Imraan 3:5] Do you not know that these physical faculties with which you are disobeying your Creator will testify against you on the Day of Resurrection? Have you not heard the words of the Compeller (al-Jabbaar): “Till, when they reach it (Hellfire), their hearing (ears) and their eyes and their skins will testify against them as to what they used to do. And they will say to their skins, ‘Why do you testify against us?’ They will say: ‘Allaah has caused us to speak.’ He 248

Transactions - Part 5

causes all things to speak, and He created you the first time, and to Him you are made to return” [Fussilat 41:20-21 – interpretation of the meaning]? So our answer is that you must hasten to repent sincerely from this great sin, regret deeply what you have done, immediately give it up and give up everything that may lead to it. The causes of zina include the following: 1 – Unveiling and wanton display by uncovering the face, hair or any part of the body. It was narrated in the hadeeth that the Prophet (peace and blessings of Allaah be upon him) said: “There are two types of the people of Hell whom I have not seen… Women who are clothed yet naked, who have gone astray and try to lead others astray also. Their heads look like the humps of camels, leaning to one side. They will never enter Paradise nor even smell its fragrance, although its fragrance may be detected from such and such a distance.” (Narrated by Imam Muslim, al-Libaas wa’l-Zeenah, 3971). 2 – Being alone with a man who is not a mahram for you, because the Messenger of Allaah (peace and blessings of Allaah be upon him) said: “No man should be alone with a (non-mahram) woman unless her mahram is present.” (Narrated by al-Bukhaari, 3842). 3 – Beware of mixing with those whom you are not permitted to mix with, for zina only happens as a result of that. You must pay attention to your conscience and do not pay attention to the whispers of the Shaytaan when he tries to make zina look attractive and to make this crime seem insignificant. The Shaytaan has sworn by Allaah’s Glory that he will mislead the sons of Adam. Allaah says (interpretation of the meaning): 249

Jurisprudence and Islamic Rulings

“[Iblees (Satan)] said: ‘By Your Might, then I will surely, mislead them all, Except Your chosen slaves amongst them (i.e. faithful, obedient, true believers of Islamic Monotheism)’” [Saad 38:82] The Shaytaan has gained a victory over you in this way, but he will not stop at making you fall into this sin, rather he is striving to make sure that you will abide in Hell for eternity – we seek refuge with Allaah from that – by making the idea of giving up prayer on the basis of this false reasoning seem attractive to you. Because giving up prayer constitutes kufr or disbelief in Allaah. In Saheeh Muslim it is narrated that Jaabir ibn ‘Abd-Allaah said: “I heard the Messenger of Allaah (peace and blessings of Allaah be upon him) say, ‘Between a man and kufr and shirk there stands his giving up prayer.’” (al-Eemaan, 116). And he (peace and blessings of Allaah be upon him) said: “The covenant that differentiates us from them is prayer; whoever gives it up is a kaafir.” (Narrated by al-Tirmidhi, al-Eemaan, 2545; classed as saheeh by al-Albaani in Saheeh Sunan al-Tirmidhi, 2113) So you have to pray a great deal for forgiveness, repent and make du’aa’. You have to pray regularly and pray a great deal, and strive to be humble and focused in prayer, because Allaah says (interpretation of the meaning): “and perform AsSalaah (IqaamatasSalaah). Verily, AsSalaah (the prayer) prevents from AlFahshaa’ (i.e. great sins of every kind, unlawful sexual intercourse) and AlMunkar (i.e. disbelief, polytheism, and every kind of evil wicked deed)” [al-‘Ankaboot 29:45] 250

Transactions - Part 5

“And perform AsSalaah (Iqaamatas Salaah), at the two ends of the day and in some hours of the night [i.e. the five compulsory Salaah (prayers)]. Verily, the good deeds remove the evil deeds (i.e. small sins)” [Hood 11:114] You should not think that repentance is too difficult or feel that Allaah will never accept your repentance, for the Shaytaan is keen to sow the seeds of despair in your heart. You should note that whoever repents, Allaah will accept his repentance and change his bad deeds into good deeds. Allaah says (interpretation of the meaning): “Except those who repent and believe (in Islamic Monotheism), and do righteous deeds; for those, Allaah will change their sins into good deeds, and Allaah is OftForgiving, Most Merciful. And whosoever repents and does righteous good deeds; then verily, he repents towards Allaah with true repentance” [al-Furqaan 25:71] The gate of repentance is open, and no one can stand between you and repentance. The Prophet (peace and blessings of Allaah be upon him) said: “Allaah will accept the repentance of His slave so long as the death rattle has not yet reached his throat.” (Narrated by al-Tirmidhi, alDa’waat, 3460; classed as hasan by al-Albaani in Saheeh Sunan al-Tirmidhi, 2802). Allaah rejoices over this repentance. According to a hadeeth narrated by Imam Muslim in his Saheeh from Anas ibn Maalik, the Messenger of Allaah (peace and blessings of Allaah be upon him) said: “Allaah rejoices over the repentance of His slave when he repents more 251

Jurisprudence and Islamic Rulings

than any one of you would rejoice if he were travelling in the wilderness and his camel which was carrying his food and drink wandered off, and he despaired of ever finding it, then he comes to a tree and lies down in its shade, thinking that he will never see his camel again, then whilst he is like that he sees it standing next to him, so he seizes its reins and says, ‘O Allaah, You are my slave and I am Your Lord!’ making this mistake because he is so happy.” (Baab al-Tawbah, 4932). Finally, after you have repented you must cut off all the routes that may lead to evil, by means of the way prescribed in sharee’ah which Allaah has permitted, namely marriage. You should note that it is not permissible for a Muslim man or woman to marry a person who has committed zina unless he or she repents to Allaah. If he repents and gives up this sin, then it is permissible for you to marry him after he repents. Please see questions no. 11195 and 2627. May Allaah help us and you to repent sincerely. And Allaah knows best. May Allaah send blessings and peace upon our Prophet Muhammad. Islam Q&A (www.islam-qa.com) 1397: Acceptance of righteous deeds from one who commits zina Question: Will Allah accept the prayer and good deeds of a person who is continually committing sin such as fornification eventhough in his/her heart the person is aware that he/ she is sinning and is full of guilt and tries his/her very 252

Transactions - Part 5

best not to continue committing such sin. Except for this weakness this person tries to be a good muslim e.g. never misses daily prayers, giving out time and money towards the cause of Allah, never take alcohol or other un-halal foods etc. Answer: Praise be to Allaah. Yes, Allaah will accept whatever righteous deeds he does, such as praying, fasting, giving charity etc., and He will also accept his repentance, as He says (interpretation of the meaning): “And He it is Who accepts repentance from His slaves, and forgives sins, and He knows what you do.” [al-Shooraa 42:25]. But there is the condition that his repentance must be sincere. Does this person truly regret what he has done? Is he indeed determined not to repeat the sin? Has he, I wonder, gotten rid of everything that may lead him to sin, such as relationships, addresses, telephone numbers, going to evil places, bad friends, movies, pictures and so on? What we believe is that if this person truly repents, he will give up this sin. Zina is one of the worst kinds of immoral deeds. Allaah says (interpretation of the meaning): “And come not near to the unlawful sexual intercourse. Verily, it is a faahishah [i.e., anything that transgresses its limits, a great sin], and an evil way (that leads one to Hell unless Allaah forgives him).” [al-Isra’ 17:32]. Married people who commit zina (adultery) are to be punished with the worst and most severe form of punishment, which is to be stoned to death, so that every part of their bodies may feel pain just as they felt pleasure in a haraam manner even though they were not without a halaal source of pleasure (i.e., within marriage). 253

Jurisprudence and Islamic Rulings

Unmarried people who commit zinaa, and had never been married before, are to be given the maximum number of lashes prescribed in sharee’ah, which is one hundred lashes. In addition, they are subjected to the humiliation of having their punishment witnessed by a group of believers, and are to be banished for one full year from their city, the place where they committed the crime. The punishment for those who are guilty of zinaa in Barzakh (i.e., after death and before the Day of Resurrection) is that they will be in an oven, the top of which is narrow and the bottom of which is wide. A fire will be lit under it, and they will be naked in (that oven). When the fire is lit, they will scream and rise up until they almost come out of the oven, then when the fire subsides, they will go back down into it. This is what will keep happening to them until the Hour begins. So how will their punishment be in the Fire of Hell itself? We ask Allaah not to despise us and to accept our repentance; we ask Him to help us to do good and to avoid evil, for He is the All-Hearing, Ever-Near. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 22769: Will an adulterer be deprived of al-hoor al-‘ayn? What is the meaning of the hadeeth “Whoever commits adultery, the same will be done to him (i.e., his womenfolk)”? Question: If a man commits zina then repents, will he be deprived of al-hoor al-‘ayn in the Hereafter? And what is the meaning of the phrase “the same will be done to him (i.e., 254

Transactions - Part 5

his womenfolk), even within the walls of his house?” If that refers to his mahrams. Answer: Praise be to Allaah. If an adulterer or anyone else who has committed a sin repents sincerely, Allaah will accept his repentance and expiate for his bad deeds, as is indicated by a great deal of evidence in the Qur’aan and Sunnah. For example, Allaah says (interpretation of the meaning): “Say: O ‘Ibaadi (My slaves) who have transgressed against themselves (by committing evil deeds and sins)! Despair not of the Mercy of Allaah, verily, Allaah forgives all sins. Truly, He is OftForgiving, Most Merciful” [al-Zumar 39:53] Indeed, if his repentance is good, his bad deeds may be replaced with good, by the immense grace and mercy of Allaah, as Allaah says (interpretation of the meaning): “And those who invoke not any other ilaah (god) along with Allaah, nor kill such person as Allaah has forbidden, except for just cause, nor commit illegal sexual intercourse and whoever does this shall receive the punishment. The torment will be doubled to him on the Day of Resurrection, and he will abide therein in disgrace; Except those who repent and believe (in Islamic Monotheism), and do righteous deeds; for those, Allaah will change their sins into good deeds, and Allaah is OftForgiving, Most Merciful” [al-Furqaan 25:68-70] 255

Jurisprudence and Islamic Rulings

What is implied by the forgiveness of Allaah and His acceptance of repentance is that He will not punish him. But if a person persists in committing zina and does not repent from it, then it is proven that such a person will suffer different kinds of punishment, in this world, in the grave and in the Hereafter. We do not find any text that states that he will be deprived of al-hoor al-‘ayn, but some of the scholars have reached this conclusion by analogy with the proven warning concerning one who dies without repenting from drinking wine, who will not drink it in the Hereafter; and one who does not repent from wearing silk in this world, who will not wear it in the Hereafter. Ibn al-Qayyim (may Allaah have mercy on him) listed the punishments that will befall the one who commits zina, if he does not repent: “He exposes himself to missing out on the enjoyment of al-hoor al-‘ayn in the blessed abode of the Paradise of ‘Aden (the Garden of Eden). For Allaah will punish the one who wears silk in this world by depriving him of it on the Day of Resurrection; and He will punish the one who drinks wine in this world by depriving him of it on the Day of Resurrection; so by the same token He will punish the one who enjoyed haraam intimacy in this world. Indeed, everything of haraam things that a person enjoyed in this world, he will be deprived of its legitimate counterpart in the Hereafter.” (Rawdat al-Muhibbeen by Ibn al-Qayyim, 365-368) With regard to the hadeeth which says that the Prophet (peace and blessings of Allaah be upon him) said “Whoever commits adultery, the same will be done to him (i.e., his womenfolk), even within the walls of his house”, this is a fabricated (mawdoo’) hadeeth, as was stated by al-Suyooti and Ibn ‘Arraaq, and by al-Albaani in al-Silsilah al-Da’eefah, 2/155. 256

Transactions - Part 5

Based on that, there is no point to your objection. Even if the hadeeth were saheeh, it could be interpreted in a sound manner, which is that a man who commits zina and persists in it is one of the immoral and corrupt, and this corruption will have an effect on his family, because it will influence his family and make them corrupt as well. If the head of the household is careless about his own attitude, he will be even more careless about his family, and he will not discipline them to follow their religion properly. As a result, it is not unlikely that they will fall into the same sins as he did, because their faith is weak. In fact there are many stories from real life which point to such cases. This is one of the punishments which are hastened in this world, by means of which Allaah punishes those who violate the honour of the Muslims, so Allaah causes their honour to be violated in turn, as a fitting punishment. Allaah does whatsoever He wills, in accordance with the utmost wisdom and perfect justice, and He is never unjust towards anyone. He is not to be questioned as to what He does, and He is the Most Wise, All-Knowing. Islam Q&A (www.islam-qa.com) 13707: Can she marry someone who practices homosexuality? Question: I have a gay friend born in a muslim family. he has turned gay because of certain circumstances eg. absence of father and other things. i want to ask : is he considered a muslim? can i marry him in the hope that it’ll bring him to the right path once more? i’m trying to change him back : is it okay for me to talk to him about sexual matters and all? what if he promises me to try to 257

Jurisprudence and Islamic Rulings

be on the straight path if i marry him ? if i marry him, and some day he gives in to his temptation (ie has a sexual intercourse with a male), will that have any affect on our marriage ? if he has had sexual contacts with males, is it forgivable if he repents sincerely ? Answer: Praise be to Allaah. Homosexuality is a major sin which deserves the most severe of punishments in this world and in the Hereafter. See Question no. 5177. But the person who does that cannot be described as a kaafir because of that, unless he thinks that it is permissible and claims that it is halaal – in which he is to be denounced as a kaafir. But simply doing it whilst admitting that it is haraam does not put a Muslim beyond the pale of Islam. He is still a Muslim, but he is exposed to the wrath of Allaah and is committing a major sin. It is not permissible for you to go ahead and marry him until he repents sincerely. Simply promising does not count as repentance. My advice to you is not to go ahead and marry him, rather you have to look for a righteous man who will be the means of bringing you happiness in this world and in the Hereafter. Homosexuality, just like other major sins, is open to repentance: whoever repents, Allaah will accept his repentance. Shaykh ‘Abd al-Kareem al-Khudayr (www.islam-qa.com) 12707: Tragedy suffered by a girl whose mother’s husband does not fear Allaah Question: It is with sorrow that i ask this question.My friend has 258

Transactions - Part 5

been raped be her father for many years.She was conceived outside her parent’s marriage but they married following her birth.She revealed the rape after she got married.Her father is a religious man with a solid reputation.I ahve heard once that the father of an illigitimate child is allowed to have a sexual realtionship with her because in Islam she is not his daughter,kindly clear me on that matter Answer: Praise be to Allaah. If what is mentioned in the question is true, then what can we say about a mother’s husband who is so despicable, vile and contemptible, and who is lacking in religious commitment and transgresses the limits set by Allaah? To Allaah we belong and unto Him is our return; there is no power and no strength except with Allaah. Does he not know that Allaah has forbidden a man to marry the daughter of his wife with whom he has consummated the marriage? Allaah says (interpretation of the meaning): “Forbidden to you (for marriage) are: your mothers, your daughters, … your stepdaughters under your guardianship, born of your wives to whom you have gone in” [al-Nisa’ 4:23] Let alone committing immoral actions with her. Does this man not know of the serious threat which Allaah issues and the painful torment that awaits the zaani (adulterer, one who engages in unlawful sexual relations)? Allaah says (interpretation of the meaning): 259

Jurisprudence and Islamic Rulings

“And those who invoke not any other ilaah (god) along with Allaah, nor kill such person as Allaah has forbidden, except for just cause, nor commit illegal sexual intercourse and whoever does this shall receive the punishment. The torment will be doubled to him on the Day of Resurrection, and he will abide therein in disgrace” [alFurqaan 25:68-69] Does he not know that committing adultery with one’s neighbour’s wife is worse than committing adultery with any other woman? It says in the hadeeth that ‘Abd-Allaah (may Allaah be pleased with him) said: “I said, ‘O Messenger of Allaah, which sin is the worst?’ He said, ‘Setting up a rival to Allaah when He has created you.’ I said, ‘Then what?’ He said, ‘Killing your child so that he will not eat with you.’ I said, ‘Then what?’ He said, ‘Committing adultery with your neighbour’s wife.’” (Narrated by al-Bukhaari, al-Hudood, 6313). Committing adultery with one’s neighbour’s wife is regarded as a greater sin than committing adultery with any other woman, so how about committing zina with someone who is his mahram and is forbidden to him, as this evil man has done? Ibn Abi Shaybah said: Question on committing zina with a mahram: Hafs narrated from Ash’ath from ‘Adiyy ibn Thaabit from al-Bara’ that the Prophet (peace and blessings of Allaah be upon him) sent him to a man who had married his father’s wife, and ordered him to bring him his head. Wakee’ narrated from Hasan ibn Saalih from al-Suddi from ‘Adiyy ibn Thaabit that al-Bara’ said: “I met my maternal uncle and he was carrying a banner. I said, ‘Where are you going?’ He said, ‘The Prophet (peace and blessings of Allaah be upon him) has sent me to a man who married his father’s wife, to kill him, or to strike his neck.’” 260

Transactions - Part 5

Al-Musannaaf by Ibn Abi Shaybah, part 8, p. 380. Also narrated by al-Nasaa’i, al-Nikaah, 3279; classed as saheeh by al-Albaani in Saheeh al-Nasaa’i, 3123. So how about if he forced this girl to do that, and committed zina with her against her will? It is very strange that it says in the question that he is very religious, even though he has audaciously transgressed the limits set by Allaah. We ask Allaah to keep us safe and sound. One of the basic principles of Islam which no Muslim has no excuse for not knowing is that zina – with any woman at all – is haraam and is a major sin, and it is even worse if the woman with whom a person commits zina is one whom he is permanently forbidden to marry. We seek refuge with Allaah from the things that earn His wrath and painful torment. Islam Q&A (www.islam-qa.com) 20983: The punishment for zina (fornication, adultery) and how to keep oneself from going back to it Question: The problem is that I am a young man of thirty years of age. I got to know a girl who is nineteen years old who used all kinds of means to get to know me and get close to me. Without much talk or discussion, she went with me to my flat and I had intercourse with her dozens of times. There was a moment when I felt that I was about to die and I wanted to repent. I went to my father and asked him to get me married, and in fact I got married to a righteous girl from a respectable family. My main aim in marriage was to seek a woman who was religiously261

Jurisprudence and Islamic Rulings

committed, and this is what happened, for she is religious and is the daughter of a respected shaykh. But my problem has become worse. Despite the fact that I have been successfully married – in everyone else’s eyes – for over a year and a half, I suddenly realized that I still feel love for the first girl with whom I had intercourse, and I am not able to leave her. Since I got married, I have not touched her or gone near her, but not a day goes by without me getting in touch with her by phone, and I do not want to hide from you the fact that I masturbate with my hand while I am speaking to her on the phone. I feel as if I am trapped by this girl and now she is not after me as much as I am after her. When we meet I feel scared to touch her, because I fear going back to zina. My problem is simply psychological, which is how to discipline [?] myself and convince myself to keep away from this girl for once and for all, even though my wife is more beautiful than her and is better and she does everything she can to keep me chaste. Hence I despair of myself and I do not know how to sort myself out, despite the fact that everyone around me describes me as being good-hearted, loving good for people, shedding tears for the calamities and needs that befall people; they say that I try harder to do good for people than they do themselves, happily and willingly, and without them knowing about that, following the words of the Messenger of Allaah, “A man who gives in charity and conceals it so that his left hand does not know what his right hand is giving.” Please help me to that I can be content with myself and be a righteous person. Answer: Praise be to Allaah. We ask Allaah to relieve your distress and that of everyone 262

Transactions - Part 5

who is distressed. From your question we may note the following: 1 – The fact that you have cut off the route to the Shaytaan, and are preventing him from continuing to tempt you, by getting married is something commendable, which points – in sha Allaah – to the goodness in your heart. 2 – In order for you to be sincere towards your Lord in your repentance, and so that Allaah may change your bad deeds (sayi’aat) into good deeds (hasanaat), you have to stop thinking about the first woman. Do not follow in the footsteps of the Shaytaan, and do not get carried away thinking about her, let alone speaking to her on the telephone, let alone meeting her, let alone doing anything that is more serious than that. 3 – Since it was thinking of death that led you to leave the first woman and get married, you should never stop thinking of it. This is the best advice a person may be given, whether he is falling short in obeying Allaah, or he is doing something that earns the wrath of Allaah. This is what gives the one who is falling short the motive to strive, because when death comes, good deeds are no longer recorded. It also gives the one who is doing evil actions the motive to stop and give them up, because a person’s deeds are judged according to his last deeds. It is sufficient for you to think of one thing: what if Allaah were to take your soul when you were masturbating while talking to this woman? What if Allaah were to take your soul when you were having unlawful intercourse with her? My brother, think about it. Do you want to come out of your grave on the day when mankind is resurrected, holding onto your private part? Do you not see the great difference between this and between being resurrected prostrating or reciting the Talbiyah (as on Hajj or ‘Umrah) or remembering Allaah? 263

Jurisprudence and Islamic Rulings

4 – The way in which you describe yourself makes us feel that there is much that is good in you, so beware of losing the reward for this goodness by having a bad end. Beware of depriving yourself of the reward for these virtues by committing such a major sin that will bring the wrath of your Lord upon you. 5 – You have no excuse for this relationship, for you are married to a woman who – as you say – is more beautiful and is better than the first one, so why not thank Allaah for giving you a halaal means of satisfying your desires? Why are you not content with that which Allaah has decreed for you of permissible things? Your sin in doing these haraam deeds is worse than if you were not married. You are not single, rather Allaah has blessed you with the means of satisfying your desires in a permissible way. So whenever the Shaytaan makes you think of her (the first woman), go to your wife and seek refuge with Allaah from the Shaytaan. 6 – We give you the best advice, which is to make du’aa’. Get up in the latter part of the night and beseech your Lord, submitting yourself to Him and humbling yourself before His Majesty, asking Him to rid you of the problem. Turn to your Lord and call upon Him, for He is the best One to be asked – may He be glorified – and He does not turn away His slaves if they are sincere. 7 – Do you know that by thinking of this girl, getting in touch with her and meeting her, the Shaytaan may cause you to fall into that which you did before? I hope that you will not be over-confident and think that you will be able to resist, for the one who is ruled by his desires is weak, and whoever walks for a few steps with the Shaytaan will walk with him to the end. But you should know that you are incurring the wrath of the Compeller (al-Jabbaar) and

264

Transactions - Part 5

that you are committing one of the gravest acts of disobedience against Allaah after shirk. Imaam Ahmad (may Allaah have mercy on him) said: I do not know of any sin after murder that is worse than zina, and he quoted as evidence the hadeeth of ‘AbdAllaah ibn Mas’ood who said: “O Messenger of Allaah, which sin is the worst?” He said, “Setting up a rival to Allaah when He is the One Who created you.” [‘AbdAllaah] said: “Then what?” He said, “Killing your child for fear that he may eat with you.” [‘Abd-Allaah] said, “Then what?” He said, “Committing adultery with your neighbour’s wife.” And confirmation of that was revealed in the Qur’aan: “And those who invoke not any other ilaah (god) along with Allaah, nor kill such person as Allaah has forbidden, except for just cause, nor commit illegal sexual intercourse and whoever does this shall receive the punishment” [al-Furqaan 25:68] You must also understand the effects that zina has on the soul (or on one’s psyche). Ibn al-Qayyim (may Allaah have mercy on him) said: Zina encompasses all the characteristics of evil: lack of religious commitment, loss of piety, loss of chivalry, lack of protective jealousy (gheerah). You will not find any adulterer who is pious, or keeps his promises, or speaks truthfully, or is a good friend, or has complete protective jealousy towards his family. Treachery, lying, betrayal, lack of modesty, lack of awareness that Allaah is always watching, lack of chivalry, loss of protective jealousy from the heart – these are the effects and implications of zina. One of the effects of zina is that it earns the wrath of Allaah because His sacred limits are transgressed. If a 265

Jurisprudence and Islamic Rulings

man were to do such a thing to any king, he would meet the direst consequences. Another effect of zina is the darkening of the face, and the grimness and misert of face that are apparent to other people. Another effect of zina is darkness of the heart and the extinguishing of its light, which is what causes the extinguishing of light in the face and the darkening thereof. Another effect of zina is the poverty that it leads to. Another effect of zina is the loss of respect towards the one who does it, and the lowering of his status in the eyes of his Lord and in the eyes of His slaves. Another effect of zina is that is causes him to lose the best of attributes, namely chastity, goodness and righteousness, and it earns him their opposites, namely immorality, evildoing, adultery and betrayal. Another effect of zina is that it causes him to lose the title of believer, as it was narrated in al-Saheehayn that the Prophet (peace and blessings of Allaah be upon him) said: “No adulterer is a believer at the moment when he is committing adultery.” Another of the effects of zina is that it exposes one to the possibility of being one of the inhabitants of the oven (tannoor) in which the Prophet (peace and blessings of Allaah be upon him) saw the adulterers and adulteresses. Another of the effects of zina is that it takes away the goodness which Allaah described as the attribute of those who are chaste, and replaces it with the evil which Allaah described as the attribute of the adulterers, as Allaah says (interpretation of the meaning): “Bad statements are for bad people (or bad women for bad men) and bad people for bad statements (or bad men for bad women). Good statements are for good people (or good women for good men) and good people for good statements (or good men for good women)” [al-Noor 24:26] Allaah has forbidden Paradise to every evil person, and 266

Transactions - Part 5

He has made Paradise the abode of the good, and no one will enter it but those who are good. Allaah says (interpretation of the meaning): “Those whose lives the angels take while they are in a pious state (i.e. pure from all evil, and worshipping none but Allaah Alone) saying (to them): Salaamun ‘Alaykum (peace be on you) enter you Paradise, because of that (the good) which you used to do (in the world)” [al-Nahl 16:32] “and its keepers will say: Salaamun ‘Alaykum (peace be upon you)! You have done well, so enter here to abide therein” [al-Zumar 39:73] So they will deserve the greeting of the angels and admission to Paradise because of their goodness. But the adulterers are among the most evil of creation, and Allaah has made Hell the abode of evil and its people. When the Day of Resurrection comes, the evil will be distinct from the good, and the evil will be piled up together, then it and its people will be thrown into Hell. No one who is good will enter Hell and no one who is evil will enter Paradise. Another of the effects of zina is the sense of alienation which Allaah instills in the heart of the adulterer, and this is like the alienation that shows on his face. For the one who is chaste has sweetness in his face and contentment in his heart, and whoever sits with him feels at ease with him. But the adulterer has signs of alienation in his face and whoever sits with him will feel uneasy. Another of the effects of zina is lack of respect, as his family, friends and others lose respect for him, and he becomes the most despicable thing in their sight; this is in contrast to the chaste person, who is blessed with dignity and sweetness. Another of the effects of zina is 267

Jurisprudence and Islamic Rulings

that people will regard him as a traitor and no one will trust him with regard to his wife or child. Another of the effects of zina is the foul odour that will emanate from him and be detected by everyone who has a sound heart; it will emanate from his mouth and body, and were it not for the fact that there are all the people have a similar odour, that smell would spread far and wide. Another of the effects of zina is that he will feel uneasy and distressed, for adulterers are doing the opposite of what they are seeking. Whoever seeks the enjoyment and good things of life by means of that which Allaah has forbidden, Allaah will punish him by letting him get the opposite of that which he is trying to achieve. For that which is with Allaah can only be attained by obeying Him, and Allaah never makes disobedience towards Him the means of attaining anything good. If the immoral person only knew what delight, happiness, ease and good living there is in chastity, he would realize that the delights that he has missed out on are many times greater than those which he may have enjoyed, let alone the consequences in the Hereafter, when the chaste person will attain the reward of Allaah and will be honoured by Him. Another of the effects of zina is that he has exposed himself to missing out on the delights of al-hoor al-‘iyn in the beautiful abodes of the Garden of Eden (Jannaat ‘Adan). We have stated above that Allaah will punish those who wear silk in this world by depriving them of it on the Day of Resurrection, and He will punish those who drink wine in this world by depriving them of it on the Day of Resurrection. Similarly, those who enjoy forbidden images in this world will also be deprived of such in the Hereafter. Indeed, everything that a person gets in this world, if he indulges in it by permissible means, his share of it on the Day of Resurrection will be reduced to the extent that he indulged in it. And if he got it from haraam sources, he will lose out on it altogether on the Day of 268

Transactions - Part 5

Resurrection. Another of the effects of zina is that zina leads to cutting the ties of kinship, disobedience towards parents, haraam earnings, mistreating others, neglect of one’s wife and children, and it may even lead a person to shed blood unlawfully. He may seek help to commit zina by means of sihr (witchcraft) and shirk, and he may or not know that this sin inevitably includes other sins committed beforehand or alongside it, and that it leads to other kinds of sins that come after it. It is surrounded by a host of other sins that come before and after. It is the thing that is most likely to bring about evil in this world and the Hereafter, and the most likely to prevent good in this world and in the Hereafter. If a person falls into its traps and snares, it will be hard for sincere people to save him and for doctors to treat him; its prisoner cannot easily be ransomed, and its victim cannot be rescued. It also leads to the loss of blessings. If a person falls into this trap, let him bid farewell to the blessings of Allaah, for blessings may easily depart from a person and vanish. Allaah says (interpretation of the meaning): “That is so because Allaah will never change a grace which He has bestowed on a people until they change what is in their ownselves. And verily, Allaah is AllHearer, AllKnower” [al-Anfaal 8:53] “But when Allaah wills a people’s punishment, there can be no turning back of it, and they will find besides Him no protector” [al-Ra’d 13:10] These are some of the harmful effects of this action. Rawdat al-Muhibbeen, p. 360-363 We advise you to read a book by Ibn al-Qayyim which is 269

Jurisprudence and Islamic Rulings

very useful with regard to this topic. It is al-Jawaab alKaafi li man sa’ala ‘ala al-Dawaa’ al-Shaafi. Finally, we ask Allaah to keep you safe and sound with regard to your religious commitment and your worldly affairs, and to help you put your affairs in order before you meet your Lord. And Allaah is the Guide to the Straight Path. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 12515: Is it permissible for a zaani (fornicator) to marry a believing woman? Question: please tell me can i marry a beliver if i‘ve had sex with a non muslim please answer? Answer: Praise be to Allaah. If a fornicator repents sincerely, Allaah accepts his repentance. Allaah says (interpretation of the meaning): “And those who invoke not any other ilaah (god) along with Allaah, nor kill such person as Allaah has forbidden, except for just cause, nor commit illegal sexual intercourse and whoever does this shall receive the punishment. The torment will be doubled to him on the Day of Resurrection, and he will abide therein in disgrace; Except those who repent and believe (in Islamic 270

Transactions - Part 5

Monotheism), and do righteous deeds; for those, Allaah will change their sins into good deeds, and Allaah is Oft Forgiving, Most Merciful. And whosoever repents and does righteous good deeds; then verily, he repents towards Allaah with true repentance” [al-Furqaan 25:68-71] See also question no. 728. If he repents, then he may marry a believing woman. If a fornicator repents, he should conceal his past and not spread word of it. And Allaah knows best. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 14381: Is it permissible for one who has committed zina (fornication or adultery) to get married after he or she has repented? Question: I am a muslim that converted about three years ago. I am still learning and I have a question. I have been told that if I had sex after I converted I would not be able to islamically get married under the ways of islam. I wanted to know if this is true and if it is, is there any way to correct the deed that I am so very sorry for. Answer: Praise be to Allaah. The one who has committed zina (fornication or adultery) has to repent, because zina is one of the major sins which are forbidden in Islam and for which a stern warning is 271

Jurisprudence and Islamic Rulings

issued to the one who does them. Allaah says (interpretation of the meaning): “And those who invoke not any other ilaah (god) along with Allaah, nor kill such person as Allaah has forbidden, except for just cause, nor commit illegal sexual intercourse and whoever does this shall receive the punishment. The torment will be doubled to him on the Day of Resurrection, and he will abide therein in disgrace” [al-Furqaan 25:68-69] The punishment must be carried out in this world on the one who has committed zina (fornication or adultery), as Allaah says (interpretation of the meaning): “The fornicatress and the fornicator, flog each of them with a hundred stripes. Let not pity withhold you in their case, in a punishment prescribed by Allaah, if you believe in Allaah and the Last Day. And let a party of the believers witness their punishment” [al-Noor 24:2] It was narrated in a hadeeth from the Prophet (peace and blessings of Allaah be upon him): “Receive (teaching) from me, receive (teaching) from me. Allaah has ordained a way for those (women). When an unmarried male commits adultery with an unmarried female, (they should receive) one hundred lashes and banishment for one year. And in the case of a married male committing adultery with a married female, they shall receive one hundred lashes and be stoned to death.” (Narrated by Muslim, al-Hudood, 3199). Allaah has forbidden the believers to marry a person who 272

Transactions - Part 5

commits zina, whether man or woman. Allaah says (interpretation of the meaning): “The adulterer — fornicator marries not but an adulteress — fornicatress or a Mushrikah; and the adulteress – fornicatress, none marries her except an adulterer — fornicater or a Mushrik [and that means that the man who agrees to marry (have a sexual relation with) a Mushrikah (female polytheist, pagan or idolatress) or a prostitute, then surely, he is either an adulterer — fornicator, or a Mushrik (polytheist, pagan or idolater). And the woman who agrees to marry (have a sexual relation with) a Mushrik (polytheist, pagan or idolater) or an adulterer — fornicator, then she is either a prostitute or a Mushrikah (female polytheist, pagan, or idolatress)]. Such a thing is forbidden to the believers (of Islamic Monotheism)” [al-Noor 24:3] If the one who has committed zina repents to Allaah, truly and sincerely, then Allaah will forgive him or her, and overlook the sin. Allaah says, after mentioning the warning to those who commit zina: “Except those who repent and believe (in Islamic Monotheism), and do righteous deeds; for those, Allaah will change their sins into good deeds, and Allaah is Oft Forgiving, Most Merciful. And whosoever repents and does righteous good deeds; then verily, he repents towards Allaah with true repentance” [al-Furqaan 25:70-71 – interpretation of the meaning] If the person repents sincerely, then it becomes permissible for him or her to get married, after they give up this sin.

273

Jurisprudence and Islamic Rulings

Shaykh Muhammad ibn Ibraaheem was asked about the ruling on getting married to a woman who has committed zina. He said: “it is not permissible to marry the woman who has committed adultery until she repents… if a man wants to marry her, he has to be sure that she is not pregnant, by waiting until she has a period before he does the marriage contract with her. If she is pregnant, then it is not permissible for him to marry her until she has given birth.” See al-Fataawa al-Jaami’ah li’l-Mar’ah al-Muslimah, 2/584 Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 13331: Abortion of a foetus resulting from a zina relationship Question: Is it permissible for a woman who has committed immoral actions to abort the foetus? Answer: Praise be to Allaah. The efforts and ijtihaad of the fuqaha’ have focused on abortion in general terms, and the rulings on that and the consequences that may follow. They have not gone into details concerning cases where the pregnancy results from immorality. This may be because they consider that to come under the same ruling as abortion of a pregnancy resulting from a proper marriage. If abortion of a pregnancy resulting from a proper marriage is haraam 274

Transactions - Part 5

under normal circumstances, then it is even more so in cases where the pregnancy results from immorality, because permitting abortion of pregnancy which results from immorality would encourage evil actions and the spread of immorality. One of the basic principles of Islam is that it forbids immorality and all the ways that lead to it, e.g., it forbids tabarruj (wanton display of one’s charms) and free mixing (of men and women). In addition, an innocent foetus which has committed no sin should not be sacrificed because of a sin committed by someone else. Allaah says (interpretation of the meaning): “No one laden with burdens can bear another’s burden” [al-Israa’ 17:15] It is known that the Messenger of Allaah (peace and blessings of Allaah be upon him) sent the Ghaamidi woman who was pregnant as a result of zinaa away until she gave birth, then after the birth he sent her away until she had breastfed the child and weaned him. She came back with the child who had a piece of bread. The Prophet (peace and blessings of Allaah be upon him) gave the child to one of the Muslims, then he gave orders that she should be placed in a hole up to her chest, and commanded the people to stone her. Imaam al-Nawawi said concerning this hadeeth: “A pregnant woman should not be stoned until she gives birth, whether her pregnancy is the result of zina or otherwise. This is agreed upon, lest her foetus be killed. The same applies if her hadd punishment is flogging; a pregnant woman should not be flogged, according to consensus, until she has given birth.” (Saheeh Muslim bi Sharh al-Nawawi, 11/202) This incident shows us the extent to which Islam is concerned with the foetus, even if it is the result of zina: 275

Jurisprudence and Islamic Rulings

the Prophet (peace and blessings of Allaah be upon him) delayed the carrying out of the hadd punishment on the mother in order to save the life of the foetus. Can it be imagined that the Lawgiver would permit killing the foetuses by abortion in order to fulfil the wishes of those who follow their whims and desires? Furthermore, those who say that abortion is permitted within the first forty days of a legitimate pregnancy based their ijtihaad on a concession, like not fasting in Ramadaan for those who have valid excuses, or shortening the fourrak’ah prayers whilst travelling, but it is stated in sharee’ah that concessions cannot be connected to sins. Imaam al-Quraafi said: “With regard to sins, they cannot be taken as reasons for concessions. Hence one who is travelling for the purpose of sin cannot shorten his prayers or break his fast, because the reason for doing these is travelling, but in this case the reason for travelling is to commit sin, so the concession does not apply, because granting a concession on the basis of sin will encourage people to sin further.” (al-Furooq, 2/33) Similarly, the basic principles of Islamic sharee’ah do not give the same concessions to a woman who is pregnant as a result of zinaa as are given to a woman who is pregnant as a result of proper marriage, lest that help her in her sin, and it does not make it easy for her to get rid of the results of her evil actions. In addition, the foetus in the case of zinaa has no guardian, because according to sharee’ah the title of father can only be given to the one who has a child from a woman in a proper marriage. This is part of the meaning of the hadeeth: “The child goes to the owner of the bed and the adulterer gets nothing but the stones (despair, i.e. to be stoned to death).” (Narrated by al-Bukhaari and Muslim). 276

Transactions - Part 5

The guardian of the foetus in such cases is the sultan or ruler – the one who is in charge of the Muslims’ affairs – for he is the guardian of those who have no guardian. The way in which the ruler disposes of people’s affairs is based on the interests of the people, and there is no interest to be served in destroying the soul of the foetus in order to preserve the mother’s interests, because that would involve encouraging her and others to persist in this evil action. It is permissible to resort to aborting the foetus of a woman who has committed this evil action but now wants to repent sincerely, and is very afraid. This is a major principle of sharee’ah, and is subject to the condition that this be done as early in the pregnancy as possible, and that this fatwa be given only in individual cases and not be treated as a general fatwa, lest this concession becomes a means of encouraging evil in the Muslim society. And Allaah knows best. From Ahkaam al-Janeen fi’l-Fiqh al-Islami by ‘Umar ibn Muhammad ibn Ibraaheem Ghaanim (www.islam-qa.com) 11195: He committed adultery and his conscience is troubling him, and he wants to get rid of the foetus Question: I a Moslem single person, who lives in the USA. I committed adultery many times with the same woman. Now, the women is pregnant. I would like to know if I can marry her in order to solve the problem (I mean cover the scandal)so the baby will find a father and gets the name. Actually, unfortunately, I would prefer abortion and 277

Jurisprudence and Islamic Rulings

I wish to convince her to do that, but don’t know if this is considered killing a person. If so, I would feel guilty because of that. I believe the embryo is about 6-8 weeks. Please I need your help as soon as possible, Jazak Allah Khair. Answer: Praise be to Allaah. Firstly, my brother in Islam, I offer you my condolences for the faith that you lost during the times when you were committing adultery. For the Prophet (peace and blessings of Allaah be upon him) said: “When an adulterer commits illegal sexual intercourse, then he is not a believer at the time he is doing it, and when a drinker of an alcoholic liquor drinks it, then he is not a believer at the time of drinking it, and when a thief steals, then he is not a believer at the time of stealing, and when a robber robs, and the people look at him, then he is not a believer at the time of doing robbery.” (Narrated by al-Bukhaari, no. 2475) Have you not read what your Lord says in His Book? “And come not near to unlawful sex. Verily, it is a Faahishah (i.e. anything that transgresses its limits: a great sin, and an evil way that leads one to Hell unless Allaah forgives him)” [al-Israa’ 17:32 – interpretation of the meaning] Do you not know that Allaah sees you wherever you are, and He hears you when you speak? Do you not remember the great blessings that Allaah has bestowed upon you? For He is the One Who heals you when you are sick, the One Who feeds you when you are hungry and gives you to drink when you are thirsty. And 278

Transactions - Part 5

He has given you the greatest blessing that He has bestowed upon mankind, the blessing of Islam. “Is there any reward for good – other than good?” [al-Rahmaan 55:60 – interpretation of the meaning] My brother, ask yourself, Whose dominion do you live under? Whose provision do you eat from? By Whose command do you live? Is it not the dominion of Allaah, the provision of Allaah, the command of Allaah? So how can you disobey Allaah? Perhaps you have forgotten the hadeeth of the Mi’raaj, in which the Prophet (peace and blessings of Allaah be upon him) said: “… then we proceeded and came to something like a tannoor (a kind of oven).” [The narrator] said: “I think he said, ‘in which there were clamouring voices.’” He [the Prophet (peace and blessings of Allaah be upon him)] said: “We looked into it and there we saw naked men and women. Flames were coming to them from the bottom of it, and when the flames reached them, they made an uproar. I said to them [i.e., the two angels who were accompanying him], ‘Who are these?’ They said, ‘Proceed, proceed!’… I said to them, ‘I have seen strange things this night. What is this that I have seen?’ They said, ‘We will tell you…. The naked men and women in the structure that resembled a tannoor oven are the adulterers and adulteresses.’” (Narrated by al-Bukhaari in Baab Ithm al-Zunaat, no. 7047). So you must hasten to repent sincerely before death overtakes you, for the gate of repentance is open until the sun rises from the west or before the soul reaches the throat [at death]. Allaah rejoices over the repentance of His slave, and He will change his bad deeds (sayi’aat) 279

Jurisprudence and Islamic Rulings

into good deeds (hasanaat). Allaah says (interpretation of the meaning): “And those who invoke not any other ilaah (god) along with Allaah, nor kill such person as Allaah has forbidden, except for just cause, nor commit illegal sexual intercourse and whoever does this shall receive the punishment. The torment will be doubled to him on the Day of Resurrection, and he will abide therein in disgrace; Except those who repent and believe (in Islamic Monotheism), and do righteous deeds; for those, Allaah will change their sins into good deeds, and Allaah is OftForgiving, Most Merciful. And whosoever repents and does righteous good deeds; then verily, he repents towards Allaah with true repentance[al-Furqaan 25:68-71] Secondly, with regard to your question, “Do I have to marry her?”, this is the issue of the adulterer marrying the woman with whom he committed adultery. The answer is that it is not permissible for him (the adulterer) to marry her, or for her to marry him, until the label of adultery no longer applies to them. That label can only be removed through repentance. It is not permissible for you to marry her even if she is Jewish or Christian, because she is a zaaniyah (adulteress). Even if she is Muslim, it is not permissible for you to marry her because she is a zaaniyah. And it is not permissible for her to accept you as a husband because you are a zaani (adulterer). Allaah says (interpretation of the meaning): “The adulterer — fornicator marries not but an adulteress — fornicatress or a Mushrikah; and the adulteress – 280

Transactions - Part 5

fornicatress, none marries her except an adulterer — fornicator or a Mushrik [and that means that the man who agrees to marry (have a sexual relation with) a Mushrikah (female polytheist, pagan or idolatress) or a prostitute, then surely, he is either an adulterer — fornicator, or a Mushrik (polytheist, pagan or idolater). And the woman who agrees to marry (have a sexual relation with) a Mushrik (polytheist, pagan or idolater) or an adulterer — fornicator, then she is either a prostitute or a Mushrikah (female polytheist, pagan, or idolatress)]. Such a thing is forbidden to the believers (of Islamic Monotheism)” [al-Noor 24:3] The phrase “Such a thing is forbidden to the believers” indicates that this marriage is forbidden. “It is essential that both of you repent to Allaah, give up this sin, regret the evil actions that have occurred in the past, resolve not to return to them, and do many righteous deeds, so that Allaah may accept your repentance and turn your bad deeds (sayi’aat) into good deeds (hasanaat). Allaah says (interpretation of the meaning): ‘And those who invoke not any other ilaah (god) along with Allaah, nor kill such person as Allaah has forbidden, except for just cause, nor commit illegal sexual intercourse and whoever does this shall receive the punishment. The torment will be doubled to him on the Day of Resurrection, and he will abide therein in disgrace; Except those who repent and believe (in Islamic Monotheism), and do righteous deeds; for those, Allaah will change their sins into good deeds, and Allaah is OftForgiving, Most Merciful. 281

Jurisprudence and Islamic Rulings

And whosoever repents and does righteous good deeds; then verily, he repents towards Allaah with true repentance’ [al-Furqaan 25:68-71] If you want to marry her, you have to be sure that she is not pregnant by waiting to see if she menstruates before you do so. If it becomes apparent that she is pregnant, it is not permissible for you to marry her until after she delivers the baby, in accordance with the hadeeth of the Prophet (peace and blessings of Allaah be upon him), in which he forbade a man to use his water to irrigate the crops of another.” (Fatwas of the Standing Committee in al-Buhooth alIslamiyyah magazine, vol. 9, p. 72) Thirdly, you say, “so the baby will find a father and gets the name” This is the matter of attributing the child of adultery: who is he to be named after? The answer is that the majority of scholars said that the child of adultery should not be named after the adulterer, because the Prophet (peace and blessings of Allaah be upon him) said: “The child goes to the owner of the bed and the adulterer gets nothing but the stones (despair, i.e., to be stoned to death).” (Agreed upon. Al-Bukhaari 2053; Muslim, 1457. AlMughni by Ibn Qudaamah, vol. 7, p. 129) Fourthly, you say, that you would prefer the woman to get rid of the baby. This is the issue of abortion, and the ruling on that is as stated in the report of the Committee of Senior Scholars (Hay’at Kibaar al-‘Ulamaa’), no. 140, dated 20/6/1407 AH, which is as follows: “1 – It is not permissible to abort the pregnancy at any of 282

Transactions - Part 5

its various stages except for a legitimate shar’i reason, and within very narrow limits. 2 – If the pregnancy is in the first stage, which is forty days, and aborting it will serve a legitimate shar’i interest or ward off some harm, then it is permissible to abort it. But aborting it at this stage for fear of difficulty in bringing up children or in providing for them or teaching them, or fear for their future, or because the couple feel that they have enough children – this is not permitted. 3 – It is not permissible to abort the pregnancy once it has become an ‘alaqah (clot) or mudghah (chewed lump of flesh) [i.e., after 40 days’ gestation] unless a trustworthy medical committee has stated that allowing the pregnancy to continue poses a danger to the health of the mother, such that there is the fear that she will die if the pregnancy continues. In this case it is permissible to abort the pregnancy, after exhausting all other means of trying to ward off that danger. After the third stage, and after the completion of four months of pregnancy, it is not permissible for you to abort the pregnancy unless a group of trustworthy specialist doctors decide that leaving the foetus in his mother’s womb will lead to the death of the mother; this is after exhausting all possible means of keeping the foetus alive. Performing an abortion subject to these conditions is permitted in order to ward off the greater of the two harms, and to preserve the greater of the two interests.” (Quoted from al-Fataawa al-Jaami’ah, vol. 3, p. 1055) We ask Allaah to keep us safe and sound and to accept our repentance. May Allaah bless our prophet Muhammad. Islam Q&A Sheikh Muhammed Salih AlMunajjid (www.islam-qa.com) 283

Jurisprudence and Islamic Rulings

10340: He committed zina with a woman and wants to marry her, but her father refuses Question: I have more of a problem, than a question to ask. I have had a Muslim girlfriend for 2 years, but recently split up. I know that she feels the same way as me, and that we want to marry. The problem is that her parents have warned her not to contact me. If I was to tell them that I took their daughters virginity, will this give me the right to her hand in marriage. I know that it was a sin to do this, but I wasa doing it before I converted to Islam. Now she says that she must obey her family, but i’m so desperate to be with her (for the right reasons) and take her as my wife. In the country where she is from, there are ‘religous police’ if we had intercourse in her country, then they’d make us marry, but we don it in the UK, does this matter? Please help me, i’m in total dispear at this situation. I will do anything to allow her to become my wife. Answer: Praise be to Allaah. You must hasten to repent to Allaah from this evil action and major sin, and to ask for forgiveness and do a lot of righteous deeds so that Allaah may forgive you. With regard to the girl with whom you committed zina, it is not permissible for you to marry her unless you both repent to Allaah, it is clear that she is not pregnant and her legal guardian consents to your marrying her. Otherwise, look for a chaste girl and remember how grave your sin was. May Allaah forgive us and you. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 284

Transactions - Part 5

5967: His parents admitted to him that he was conceived in zinaa. Whose name should he take? Question:

My parents conceived me from zina.Whose name do I take and who are my people? Jazakallah khairyn

Answer: Praise be to Allaah. We addressed this question to Shaykh ‘Abd-Allaah ibn Jibreen, who wrote back to us with the following response: The correct view is that there is no sin on the child of zinaa because of the sin of his parents, because he did not do anything wrong. The (burden of) sin is on his parents. On this basis, he can call himself after his father who has acknowledged his paternity, so that he can prove that he belongs to him and his state (in official papers). Or he can call himself after his mother who gave birth to him, because this is his line of descent; then he will belong to her tribe and state. He should also do righteous deeds and be upright in his conduct and commitment to Islam. What his parents did should not cause him any harm. A person who is hindered by his bad deeds will not be helped by his lineage [i.e., a person’s origins do not count for anything if his actions are bad]. And Allaah knows best. Shaykh ‘Abd-Allaah ibn Jibreen (www.islam-qa.com)

285

Jurisprudence and Islamic Rulings

5177: Can those who have committed homosexual acts be forgiven, and is it permissible for such a person to get married? Question: Could inform me regarding the Islamic view about people who have committed homosexual acts, but have repented and abstained from such acts. Should they be stoned to death? Can they be forgiven? And are they allowed to marry people of the opposite gender? Answer: Praise be to Allaah. Undoubtedly the sin of homosexuality is one of the worst sins; indeed, it is one of the major sins (kabaa’ir) that Allaah has forbidden. Allaah destroyed the people of Loot (peace be upon him) with the most terrifying kinds of punishment because they persisted in their sin and made this evil action commonplace and acceptable among themselves. Allaah says (interpretation of the meaning): “So when Our Commandment came, We turned (the towns of Sodom in Palestine) upside down, and rained on them stones of baked clay, in a well-arranged manner one after another; Marked from your Lord” [Hood 11:82-83]. Then Allaah says, warning those who come after them of the nations who do the same deed as they did (interpretation of the meaning): “and they are not ever far from the Zaalimoon (polytheists, evildoers)” [Hood 11:83] And Allaah says (interpretation of the meaning): 286

Transactions - Part 5

“And they indeed sought to shame his guest (by asking to commit sodomy with them). So We blinded their eyes (saying), ‘Then taste you My Torment and My Warnings.’” [al-Qamar 54:37] The Prophet (peace and blessings of Allaah be upon him) said: “Whoever you find doing the action of the people of Loot, kill them, the one who does it and the one two whom it is done.” (Narrated by Ahmad, 2727; classed as saheeh by al-Albaani in Saheeh al-Jaami’ al-Sagheer wa Ziyaadatihi, no. 6589). Imaam Ibn al-Qayyim (may Allaah have mercy on him) said: It was reported that the Prophet (peace and blessings of Allaah be upon him) said: “Kill the one who does it and the one to whom it is done.” (Reported by the four authors of Sunan. Its isnaad is saheeh. At-Tirmidhi said it is a hasan hadeeth). Abu Bakr al-Siddeeq judged in accordance with this, and he wrote instructions to this effect to Khaalid, after consulting with the Sahaabah. ‘Ali was the strictest of them with regard to that. Ibn al-Qasaar and our shaykh said: the Sahaabah agreed that [the person who does homosexual acts] should be killed, but they differed as to how he should be killed. Abu Bakr al-Siddeeq said that he should be thrown down from a cliff. ‘Ali (may Allaah be pleased with him) said that a wall should be made to collapse on him. Ibn ‘Abbaas said, they should be killed by stoning. This shows that there was consensus among them that [the person who does homosexual acts] should be killed, but they differed as to how he should be executed. This is similar to the ruling of the Prophet (peace and blessings of Allaah be upon him) concerning the person who has intercourse with a woman who is his mahram [incest], because in both cases intercourse is not 287

Jurisprudence and Islamic Rulings

permitted under any circumstances. Hence the connection was made in the hadeeth of Ibn ‘Abbaas (may Allaah be pleased with him) who reported that the Prophet (peace and blessings of Allaah be upon him) said, “Whoever you find doing the deed of the people of Loot, kill them.” And it was also reported that he (peace and blessings of Allaah be upon him) said: “Whoever has intercourse with a woman who is his mahram, kill him.” And according to another hadeeth with the same isnaad, “Whoever has intercourse with an animal, kill him and kill the animal with him.” (Narrated by Ahmad, 2420; Abu Dawood, 4464; al-Tirmidhi, 1454; al-Haakim, 4/355). This ruling is in accordance with the ruling of sharee’ah, because the worse the haraam action is, the more severe the punishment for it. Having intercourse in a manner that is not permissible under any circumstances is worse than having intercourse in a manner which may be permitted in some circumstances, so its punishment is more severe. This was stated by Ahmad in one of the two reports narrated from him. (Zaad al-Ma’aad, part 5, p. 40-41). The same applies to the sin of lesbianism. There is no doubt among the fuqahaa’ that lesbianism is haraam and is a major sin, as stated by al-Haafiz Ibn Hajar (may Allaah have mercy on him). (Al-Mawsoo’ah al-Fiqhiyyah, part 24, p. 251). With regard to the specific type of punishment mentioned in the question – stoning to death – this kind of punishment is for the adulterer who is married. The shar’i punishment for the crime of homosexuality is execution – by the sword, according to the most correct view – as was narrated in the discussion above about the differences among the scholars as to how this execution should be carried out. As far as lesbianism is concerned, there is no hadd for it, but it is subject to ta’zeer [unspecified 288

Transactions - Part 5

punishment to be determined at the discretion of the qaadi]. (al-Mawsoo’ah al-Fiqhiyyah, part 24, p. 253). But if the person who does this evil deed, or any other action which is subject to a hadd punishment, repents, gives up that sin, seeks forgiveness, regrets what he has done and intends never to go back to it – Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him) was asked about that, and he answered: If he truly repents to Allaah, Allaah will accept his repentance, and he does not need to confess his sin to anyone so that the hadd punishment would be carried out on him. (Majmoo’ al-Fataawaa, part 34, p. 180). Allaah says (interpretation of the meaning): “And those who invoke not any other ilaah (god) along with Allaah, nor kill such person as Allaah has forbidden, except for just cause, nor commit illegal sexual intercourse ¾ and whoever does this shall receive the punishment. The torment will be doubled to him on the Day of Resurrection, and he will abide therein in disgrace; Except those who repent and believe (in Islamic Monotheism), and do righteous deeds; for those, Allaah will change their sins into good deeds, and Allaah is OftForgiving, Most Merciful. And whosoever repents and does righteous good deeds; then verily, he repents towards Allaah with true repentance” [al-Furqaan 25:69-71]. If he repents sincerely towards Allaah, there is no reason why he should not get married, and indeed it may be obligatory in his case, as a protection for him and in accordance with what Allaah has permitted. And Allaah knows best. May Allaah bless our Prophet Muhammad. 289

Jurisprudence and Islamic Rulings

Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 6926: How can zinaa be proven? Question: I know that in the past if someone has committed adultery, they had to bring 4 witnesses . My question is can we prove that today by using latest scientific methods as the DNA test, instead of bringing 4 witnesses. Answer: Praise be to Allaah. According to Islamic sharee’ah, zinaa can only be proven by clear evidence, namely the testimony of four trustworthy and sound witnesses who saw it actually happen, or by confession of guilt, or by the woman becoming pregnant. It cannot be proven by DNA testing or by use of cameras and videos in place of the things mentioned above. And Allaah knows best. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 2103: If she committed zinaa when she was not Muslim and had a child, then she became Muslim, what should she tell other people and the child himself? Question: WHAT TO DO IF YOU HAD A CHILD BY AN “ARAB” 290

Transactions - Part 5

THEN A DEW YEARS LATER YOU BECOME MUSLIM AND WANT TO GET MARRIED WHAT DO YOU DO? WHAT DO YOU TELL THE CHILD ABOUT HER REAL FATHER? WHAT DO YOU TELL THE PEOPLE? OR DOES IT MATTER Answer: Praise be to Allaah and peace and blessings be upon the Messenger of Allaah. Zinaa (fornication or adultery) is a crime that is forbidden by divine laws and rejected by all wise and sane people, even if they are not Muslim. Allaah has condemned those who do this in many aayaat of the Qur’aan and in numerous ahaadeeth of His Prophet (peace and blessings of Allaah be upon him). He has threatened those who do this with severe punishment and disgrace in this world and the next – except those who repent, have faith and do righteous deeds, for Allaah will accept their repentance. The gate of repentance is open, but it is a condition of repentance that one should regret the deed and give it up. Islam wipes out whatever came before. With regard to the child, he belongs to his mother, and should not be named after his father. This is the ruling concerning the illegitimate child: he should not be named after his father because he was conceived in fornication, not in wedlock. It is obligatory to take care of this child and bring him up with Islamic manners and morals. Because this immoral act has occurred, you must repent from it, but you should cover it up and not disclose it; you do not have to tell the people the truth. If the child wants to know the truth, you can tell him in an appropriate manner, and let him know that what happened was in the days of kufr (before you became Muslim), and that when a person repents and becomes Muslim, this wipes out whatever happened before. The child does not bear any 291

Jurisprudence and Islamic Rulings

responsibility for what happened, and as long as his mother has become Muslim, there is no grounds for rebuking or punishing her. It is obligatory to accept the will and decree of Allaah, and if this child does righteous deeds he will enter Paradise. No soul is made to bear the burdens of another. We ask Allaah to keep you safe and sound and to forgive you. May Allaah bless our Prophet Muhammad. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 3625: Her past is giving her sleepless nights and she feels bad for her child Question: I was a very modern girl until I met my husband who brought me to Islam alhamdulilah. I was a zaniya and I never thought it was that bad! this is making me have sleepless nights (which I sometimes spend praying to Allah)and no matter how much I do I feel Allah will not forgive me for the many sins! I got pregnant from my husband when we were still engaged ! the child is 7 now! is he a “Child from Zina” will I ever be forgiven! jazakum allah alf khair Answer: Praise be to Allaah. Firstly, whoever repents, Allaah accepts his or her repentance. Secondly, if the pregnancy and birth happened before the marriage contract took place according to sharee’ah, the 292

Transactions - Part 5

child takes the adulterous mother’s name, not the adulterous father’s. The child still has rights according to sharee’ah and he should be given a good upbringing and cared for properly. Thirdly, you should not despair of the mercy of Allaah or say “Allaah will not forgive me.” “No one despairs of Allaah’s soothing mercy except those who have no faith” [Yoosuf 12:87 – interpretation of the meaning]; “And who despairs of the mercy of his Lord, but such as go astray?” [al-Hijr 15:56 – interpretation of the meaning]. So long as you have repented, you should have the hope of mercy from Allaah. Fourthly, you will find a detailed answer about repentance from zinaa and a lot of information to make you feel better, in the book “”I Want to Repent, But...”, which is published in the “Books” section of this website. Fifthly, what is in the past can be dealt with by repenting. From now on you have to try to do a lot of good deeds, because good deeds wipe out bad deeds and raise a person’s status. We ask Allaah to forgive your sins and help you adhere firmly to His religion. We wish you a future filled with good deeds and acts of worship. May Allaah bless our Prophet Muhammad, Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 3006: Ruling on illegitimate children Question: Can an illegitimate person enter Paradise if he obeys Allaah? Is there any sin on him or not? 293

Jurisprudence and Islamic Rulings

Answer: An illegitimate child does not bear any sin because of his parents’ having committed the sin of zinaa (unlawful sexual intercourse), because that was not of his doing. They bear their own sin, because Allaah says (interpretation of the meanings): “… He gets reward for that (good) which he has earned, and he is punished for that (evil) which he has earned…” [al-Baqarah 2:286] “… no bearer of burdens shall bear the burden of another…” [al-An’aam 6:164] With regard to his ultimate destiny, the illegitimate person is like anyone else: if he obeys Allaah and does righteous deeds, and dies as a Muslim, then Paradise will be his; if he disobeys Allaah and dies as a kaafir, then he will be one of the people of Hell. If he mixes righteous deeds and bad deeds, and dies as a Muslim, then his fate is up to Allaah: if He wills, He will forgive him, if He wills, He will punish him, and his eventual admission to Paradise will be by the Grace and Mercy of Allaah. As for the hadeeth which says that an illegitimate person will not enter Paradise, this is a fabrication (falsely attributed to the Prophet SAWS (peace and blessings of Allaah be upon him)). And Allaah knows best. Fataawa Islamiyyah li’l-Lajnah al-Daa’imah, 522. (www.islam-qa.com) 3013: Is zinaa intercourse only? Question: I need further information about the verse interpreted here about adultery. Adultery, according to the Hudood I read, 294

Transactions - Part 5

require penetration. Is that true of Islamic law? Are married persons, or single for that case, indulging in immoral acts that do not include penetration (but maybe oral sex), exempted from this punishment? Secondly, is there a forgiveness for adultery? Or for what I inquired in my previous question. I’d be greatly obliged to recieve an answer, because this issue has confused me for a long time. Answer: Praise be to Allaah. Zinaa, in Arabic, means immorality, and is used with two meanings in shar’: a general meaning and a specific meaning. The general meaning includes that which carries the punishment (hadd) and that which does not carry it. Islam does not give the name of zinaa only to that which carries the punishment, which is just one of many types of zinaa. Ibn ‘Abbaas (may Allaah be pleased with them both) said: “I have never heard any better definition of ‘small faults’ [al-Najm 53:32] than that which Abu Hurayrah (may Allaah be pleased with him) narrated from the Prophet (peace and blessings of Allaah be upon him): ‘Allaah has decreed for every son of Adam his share of zinaa, and there is no way to escape from it. The zinaa of the eye is a glance, the zinaa of the tongue is speaking, and the zinaa of the mind is wishing and hoping; then the private part either acts upon this or it does not.’” (Reported by al-Bukhaari, 11/26; Muslim, 4/2046). Al-Bukhaari included this hadeeth in a chapter entitled Baab zinaa al-jawaarih doon al-farj (Chapter on the zinaa of faculties other than the private part). 295

Jurisprudence and Islamic Rulings

Al-Haafiz Ibn Hajar (may Allaah have mercy on him) said: “Zinaa is not always associated with the private part itself, but may involve other faculties such as the eyes and so on.” Ibn Battaal (may Allaah have mercy on him) said: “Looking and speaking are called zinaa because they lead to real zinaa. This is why he said that the private part either acts upon this or it does not” Zinaa is one of the forbidden deeds, one of the most serious major sins (kabaa’ir) after shirk and murder. Allaah says (interpretation of the meanings): “And those who invoke not any other god along with Allaah, nor kill such life as Allaah has forbidden, except for just cause, nor commit illegal sexual intercourse – and whoever does this shall receive the punishment. The torment will be doubled to him on the Day of Resurrection, and he will abide therein in disgrace; except those who repent and believe and do righteous deeds, for those Allaah will change their sins into good deeds, and Allaah is OftForgiving, Most Merciful.” [al-Furqaan 25:68-70] “And come not near to unlawful sexual intercourse. Verily, it is a faahishah [anything that transgresses its limits – a great sin], and an evil way (that leads one to Hell unless Allaah forgives him).” [al-Isra’ 17:32] Imaam al-Qurtubi (may Allaah have mercy on him) said: “The ‘ulama’ said that the phrase And come not near to unlawful sexual intercourse is more eloquent than merely saying ‘Do not commit zinaa’, because the meaning is, Do not even come close to zinaa.” This means not doing any deed that may get close to zinaa or lead to it, such as being alone with a member of the opposite sex, touching, 296

Transactions - Part 5

looking, going to evil places, speaking in a haraam manner to a woman to whom one is not related, thinking about and planning immoral acts, and so on. ‘Abd-Allaah ibn Mas’ood said: “I asked the Messenger of Allaah (peace and blessings of Allaah be upon him), ‘Which sin is worst in the sight of Allaah?’ He said, ‘To make any rival to Allaah, when He has created you.’ I asked, ‘Then what?’ He said, ‘To kill your child for fear that he will eat with you.’ I asked, ‘Then what?’ He said, ‘To commit zinaa with the wife of your neighbour.’” (Reported by al-Bukhaari, 8/492; Muslim, 1/90). All religions are agreed that zinaa is haraam; no religion allows it. The punishment for zinaa is the most severe of punishments, because it violates people’s honour and lineages. The sin of zinaa may be of varying degrees, and the gravity of the offence depends on the nature and circumstances of the deed, although all zinaa is haraam, a major sin and an act of immorality. Zinaa with a mahram [i.e., incest] (Allaah forbid) or with a married woman is far worse than zinaa with a woman to whom one is not related or with an unmarried woman, because it involves violating the rights of the husband, contaminating his bed, attributing a child to him that is not his, and other kinds of offence and harm. If her husband is a neighbour, the crime of being a bad neighbour is added to the offence; if her husband is one’s brother or relative, the crime of breaking family ties is added. The Prophet (peace and blessings of Allaah be upon him) said: He will not enter Paradise whose neighbour is not safe from his evil actions.” (Reported by Muslim, 1/68). There is no evil action worse than zinaa, and if the husband is absent for the sake of 297

Jurisprudence and Islamic Rulings

Allaah, such as in worship, seeking knowledge or jihaad, then the sin is compounded. Buraydah (may Allaah be pleased with him) reported that the Prophet (peace and blessings of Allaah be upon him) said: “The wives of the mujaahideen are as sacred and forbidden to those who stay behind as their own mothers. There is no man of those who stay behind who is entrusted by one of the mujaahideen with the care of his family and then betrays him (by committing zinaa), but he will be detained on the Day of Resurrection, and (the one whom he betrayed) will take as much of his good deeds as he wishes. So what do you think?” (Reported by Muslim, 3515). If the adulterer is married, the sin is greater, and the punishment is stoning, and if he is an old man, the sin is greater and the punishment is as the Prophet (peace and blessings of Allaah be upon him) mentioned in the hadeeth about the three whom Allaah will neither look at nor praise on the Day of Resurrection, and who will have a painful punishment.” (Saheeh Muslim, 156). If the deed is also committed during a sacred month or in a sacred place or at a time which is special in the sight of Allaah, the sin is compounded. The fuqaha’ (may Allaah have mercy on them) stated that the basic act of zinaa which carries the punishment is illegal sexual intercourse, whereby the two “circumcised parts” [i.e. genitals] come together and there is penetration of the tip of the penis, because this is actual penetration (which carries the prescribed hadd or punishment). A person must avoid evil deeds and everything that can lead to them. Allaah has commanded us to avoid the traps of the Shaytaan, because if a man takes one step in that direction, his shaytaan and his own ego (nafs) will keep urging him to do evil until he commits immoral deeds. One should think about how serious it is to touch a woman to whom one is not related, as the Prophet (peace and 298

Transactions - Part 5

blessings of Allaah be upon him) explained: “If one of you were to be stabbed in the head with a piece of iron it would be better for him than if he were to touch a woman whom it is not permissible for him to touch.” (Reported by al-Tabaraani; see also Saheeh al-Jaami’, 5045). This refers to the punishment for touching, so how about worse deeds, such as embracing and kissing, and even worse kinds of illicit activity? The Muslim qaadi is empowered to stipulate an appropriate punishment for every proven action other than actual intercourse; in the case of intercourse, the punishment set out by Islam is one hundred lashes and a year’s exile for one who is unmarried, and stoning for one who is married. This is the punishment in this world, and the punishment in the Hereafter is far more severe. One of the important principles which the salaf (may Allaah have mercy on them) pointed out is that the sincere believer who truly hopes for Allaah and the Hereafter should not look at whether the sin is major or minor, or whether is carries a punishment (hadd) or not. It was reported that Ibn ‘Abbaas (may Allaah be pleased with them both) said: “There is no major sin if one asks for forgiveness, and there is no minor sin if one persists in repeating it.” Someone else said: “If you want to disobey Allaah, do not think about the smallness of the sin, think about the greatness of the One Whom you are disobeying.” With regard to the matter of repentance from zinaa, please refer to the book “I Want to Repent, But...”, …”, under the heading Books on this website. May Allaah bless our Prophet Muhammad. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 299

Jurisprudence and Islamic Rulings

751: Why adultery, gambling and the flesh of swine are haraam Question: Why are adultery, gambling, eating the flesh of swine forbidden in Islam or consedered “haram”? Answer: Even though we find it strange that a Muslim would ask such a question about matters which are so clear and undisputed, the answer is simply that these things are haraam because Allaah, Whom we must obey, has forbidden them. He tells us in the Qur’aan (interpretation of the meanings): “And come not near to unlawful sexual intercourse. Verily, it is a faahishah (a great sin) and an evil way.” [al-Israa’ 17:32] “He has forbidden you only the maytatah (dead animals), and blood, and the flesh of swine…” [al-Baqarah 2:173] “O you who believe! Intoxicants, gambling, al-ansaab [stone altars for sacrifice to false gods], and al-azlaam (arrows for seeking luck or decision) are an abomination of Shaytaan’s handiwork. So avoid (strictly all) that (abomination) in order that you may be successful. Shaytaan wants only to excite enmity and hatred between you with intoxicants and gambling, and hinder you from the remembrance of Allaah and from al-salaah. So, will you not then abstain?” [al-Maa’idah 5:90-91] So we must avoid all that which Allaah has forbidden, out of faith in His laws, in the hope of His reward and in 300

Transactions - Part 5

fear of His punishment. We must also believe that Allaah does not forbid anything in Islamic sharee’ah except that which is harmful and corrupt, whether we understand this rationally or not, because He says (interpretation of the meaning): “And no, by your Lord, they can have no Faith, until they make you (O Muhammad) judge in all disputes between them, and find in themselves no resistance against your decisions, and accept (them) with full submission.” [alNisaa’ 4:65] Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 373: A woman who committed adultery and is contemplating suicide Question: A married woman commits adultery, then she repented but the guilt of the act is haunting her. She is now thinking about suicide. What should be done and what is your advice? Answer: Praise be to Allaah. Ibn Mas’ood (may Allaah be pleased with him) said: “The believer sees his sin as a mountain beneath which he is sitting and which he fears may fall down upon him. The rebellious person sees his sin as a fly which passes in front of his nose and he swats it away…” (Reported by al-Bukhaari, 6308) This woman’s overwhelming sense 301

Jurisprudence and Islamic Rulings

of the burden of her sin is a sign of faith. We offer her the following advice: She should examine her divorce from her first husband to make sure that it is sound according to sharee’ah (Islamic law), whether it took the form of talaaq (maleinstigated divorce) or khul’ (female-instigated divorce). She should make sure that her marriage contract to the second man is also sound, because a marriage between two people guilty of adultery is not valid unless they have repented (see questions # 33); if the contract is found not to be valid, it must be repeated. If this woman is sincere in her repentance towards Allaah, regrets what she did and is determined never to do it again, Allaah will forgive all her sins, no matter how great they were, so she should not despair of the mercy of Allaah, for no one despairs of Allaah’s Mercy, except the people who disbelieve, and who despairs of the mercy of his Lord except those who are astray? She should hasten to do many good deeds, to expiate for her sin, as Allaah says (interpretation of the meaning): “And perform al-salaat (the prayer) at the two ends of the day and in some hours of the night. Verily, the good deeds remove the evil deeds…” [Hud 11:114] She should resume a pure Islamic life, based on purity and chastity. Suicide is not a solution at all, as it is one of the most grievous of major sins, and will only increase the punishment of the one who does it. The Prophet SAWS (peace and blessings of Allaah be upon him) said: “Whoever throws himself down from a high mountain and kills himself will be throwing himself down from a mountain in the Fire of Hell for all eternity. Whoever takes poison and kills himself will be taking poison in the Fire of Hell for all eternity. Whoever kills himself with a 302

Transactions - Part 5

weapon (literally, iron) will be holding it in his hand and stabbing himself in the stomach in the Fire of Hell for all eternity. (Reported by al-Bukhaari, 5778) We ask Allaah to help this woman to repent sincerely, to forgive her sins and to include her in His Mercy, for He is the All-hearing Who answers prayers. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 839: Abrogation of the verse ordering the confinement of an adulteress in a house Question: I would like to know more about the meaning of this part of Surah al-Nisa’: ”If any of your women are guilty of lewdness . . . confine them to houses until death do claim them, or Allah ordain for them some (other) way.” [al-Nisaa’ 4:15] Does this mean to punish a woman who has committed adultery by death, or does it mean to imprison her for the remainder of her life? Also what does “or Allah make some way for them” mean? Thank you for you time, I look forward to your response so that I may better understand Islam through the explanation of Muslims as opposed to those of nonMuslims. Answer: Praise be to Allah. Allah says: “If any of your women are 303

Jurisprudence and Islamic Rulings

guilty of lewdness, take the evidence of four (reliable) witnesses from amongst you against them; and if they testify, confine them to houses until death do claim them, or Allah ordain for them some (other) way.” [al-Nisa’ 4:15] Ibn Katheer, may Allah have mercy on him, said in his Tafseer (explanation) of this aayah: ”At the beginning of Islam, the ruling concerning a woman who was proven guilty of adultery was that she was to be detained in a house and not allowed to come out until she died. So the phrase ‘If any of your women are guilty of lewdness’ refers to adultery. ‘Take the evidence of four (reliable) witnesses from amongst you against them; and if they testify, confine them to houses until death do claim them, or Allah ordain for them some (other) way’ - the ‘other way’ that Allah made for them was the abrogation of this. Ibn ‘Abbas, may Allah be pleased with him, said: ‘This was the ruling until Allah revealed Surat al-Nur, then this punishment was abrogated and replaced with whipping or stoning.’ Something similar was reported from ‘Ikrimah, Sa‘id ibn Jubayr, al-Hasan, ‘Ataa’ alKhurasani, Abu Saalih, Qutaadah, Zayd ibn Aslam and al-Dahhak, stating that this is abrogated, and this is agreed upon. Imam Ahmad said: ‘Muhammad ibn Ja‘far told us that Sa‘id told us from Qutaadah from al-Hasan from Hattaan ibn ‘Abdullah al-Raqaashi from ‘Ubaadah ibn al-Saamit who said: Whenever the wahy (revelation) descended upon the Messenger of Allah (Peace & Blessings of Allaah be upon Him), it affected him, the stress showed on him and his face would change. Allah sent a revelation to him one day, and when it was over, he said: “ Listen to me, Allah has made another way for them. (When) a married man (commits adultery) with a married woman, and an unmarried man with an unmarried woman, then in the case of married (persons) there is (a 304

Transactions - Part 5

punishment) of one hundred lashes and then stoning (to death), and in the case of unmarried persons, (the punishment) is one hundred lashes and exile for one year.”’ It was reported by Muslim and other narrators of Sunan via Qutaadah from al-Hasan from al-Hattan from ‘Ubaadah ibn al-Saamit from the Prophet (Peace & Blessings of Allaah be upon Him) with the wording: ‘Receive (teaching) from me, receive (teaching) from me. Allah has made another way for those (women). When an unmarried man commits adultery with an unmarried woman, (they should receive) one hundred lashes, and banishment for one year. In the case of a married male committing adultery with a married female, they should receive one hundred lashes and be stoned to death.’ AlTirmidhi said: This is a saheeh hasan hadeeth.” Al-Qurtubi, may Allah have mercy on him, said in his tafseer of this aayah: ”This [confinement] was the first punishment for adultery, at the beginning of Islam. Ibn ‘Abbas and al-Hasan said: Ibn Zayd added: They would not be allowed to marry, until they died, as a punishment for them when they asked to marry someone else. This ruling applied for a while, then the Prophet (Peace & Blessings of Allaah be upon Him) said, according to the hadeeth narrated by ‘Ubaadah ibn al-Saamit: “Receive (teaching) from me, receive (teaching) from me. Allah has made another way for those (women). When an unmarried man commits adultery with an unmarried woman, (they should receive) one hundred lashes, and banishment for one year. In the case of a married male committing adultery with a married female, they should receive one hundred lashes and be stoned to death.” Some of the scholars said: the idea of punishment and shame was still there with the lashing, because there is no contradiction, and they are applied to one person.

305

Jurisprudence and Islamic Rulings

As for confinement, this is abrogated, by the consensus of the scholars. And Allah knows best. To complete the benefit of what has been said, it is appropriate to learn the tafseer of the next aayah in Surat al-Nisaa’: ”If two men among you are guilty of lewdness, punish them both. If they repent and amend, leave them alone; for Allah is Oft Returning, Most Merciful.” [al-Nisaa’ 4:16] Ibn Katheer, may Allah have mercy on him, said in his Tafseer of this aayah: ”‘If two men among you are guilty of lewdness’ means two who commit an immoral act, so they should be punished. Ibn ‘Abbas, may Allah be pleased with him, Sa‘eed ibn Jubayr and others said: i.e., by putting them to public shame and hitting them with shoes. This was the ruling until Allah abrogated it and replaced it with lashing and stoning. ‘Ikrimah, ‘Ataa’, al-Hasan and ‘Abdullah ibn Katheer said: ‘This was revealed concerning a man and a woman who commit adultery. The phrase ‘if they repent and amend’ means if they give up what they were doing and mend their ways. ‘Leave them alone’ means not to keep rebuking them with ugly words after that, because the one who has repented from his sin is like one who never sinned at all. ‘Allah is Oft Returning, Most Merciful’ - it was proven in the two Saheehs: ‘If the slave woman of one of you commits adultery, apply the punishment of lashing, and do not blame her (after that)’ - i.e., do not blame her for what she did after the punishment has been given, because the punishment is an expiation for her deed.’” Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 306

Transactions - Part 5

728: Repentance of the Fornicator Question: Assalaamu’alaikum. I have a friend. He has married. He told me, someday he did ‘Zinnah’ with other woman. Now, he want to Taubat An-Nasuha. The Questions are : How can he do a Taubat An-Nasuha ? Would be Allah ‘azza wa jalla receive his Taubat ? He told me, (I’m sorry if sounds rough), his penis did not entered to the woman’s vagina, but their condition have been nude. His penis position between her up leg. Could we say that is a zinna that must be punished with ‘rajm’ ? As information, In our country, the zinna can’t punish with ‘rajm’. I need your answer soon as possible. Jazzakumullaahu khoiran katsiran. Assalaamu’alaikum warahmatullaahi wabarakaatuh. Answer: All Praises are Due to Allah The act that your friend committed is a great sin and crime. He must repent to Allah. The Prophet (peace and blessings of Allah be upon him) said: “the eyes fornicate, the hands fornicate, the legs commit fornication, and the private parts commit fornication”. (It is reported by Ahmad and it is in sahih Al Jahni 4150.) Tell your friend that he has to increase in good deeds so that Allah will wipe out his evil deeds, as Abdullah ibn Masud reported. He said that a man came to the Prophet 307

Jurisprudence and Islamic Rulings

(peace and blessings of Allah be upon him) and said, ‘Oh Messenger of Allah (peace and blessings of Allah be upon him), I met a woman in the garden so I pulled her close, fondled her, kissed her, and did everything with except have intercourse. The Prophet (peace and blessings of Allah be upon him) was then silent and so the verse came down, “verily, the good deeds erase the bad deeds, that is admonition to those who remember.” So the Prophet (peace and blessings of Allah be upon him) called him and recited it to him. So Umar (may Allah be pleased with him) said, ‘Oh Messenger of Allah (peace and blessings of Allah be upon him) is this for him specifically or for everyone. He said (peace and blessings of Allah be upon him) , ‘no, for everyone.’ (It was narrated by Ahmad.) There are more details on repenting from fornication. Refer to question #624. As for your question regarding whether he is considered to have committed fornication, which is punishable by stoning, it is obligatory that the married fornicator be stoned and the unmarried fornicator receive lashes. This is only if the sexual organs of the fornicator penetrate the vagina of the woman. Whatever is similar deserves a different punishment, depending on the level of the haram committed. It is not obligatory that he admit to a judge what he did. It is sufficient that repentance take place between him and Allah, and Allah is the Acceptor of repentance and the Most Merciful. We ask Allah to forgive us and the rest of the Muslims. Allah knows best. Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 308

Transactions - Part 5

1201: Responsibility Towards the Child of Fornication Question: AsSalaamu Alaikum. Before I accepted Islam I committed adultery an conceived a child with a married woman. The woman’s husband has been told the truth and is aware that the child is not his, but he still wants to keep the child and his wife. Her husband wants to have nothing to do with me (understandably) and wishes that I keep away from my son who I have rarely seen and he does not know who I am. The child is almost 3 years old and I have been a Muslim for almost 2 years. What is the Islamic ruling in such a case? Can I consider the child to be mine? The husband and his wife are both kaffirs. Answer: All Praises are Due to Allah Islam erases whatever took place before it and after Allah guides you there is no sin on you, regarding something which took place in the past. The rule according to the Shariah (Islamic Laws) is that the child is to the bed and follows the husband, unless he washes his hands of the matter. The child in not considered to be your son, nor do you have any responsibility for him. So start a married life according to Islam. May Allah forgive you and increase you in protection. 309

Jurisprudence and Islamic Rulings

Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 117: Woman who accepts Islam and whose husband is a kaafir Question: If a lady reverts to Islam and is married to a non-Muslim man, must she divorce this man? If he refuses to become a Muslim, can she continue to live with him? Answer: All praise be to Allah the Almighty. If a woman becomes a Muslima and her husband is a kaafir, then it becomes mandatory for her to separate from him and it is not permissible for her to remain with him in his state of shirk (disbelief), as per Allah’s injunction (interpretation of the meaning): “… do not send them back to the disbelievers—they are not lawful (wives) for the disbelievers nor are the disbelievers lawful (husbands) for them…” (AlMumtahinah 60:10). It is her duty to invite him to Islam and to attempt to convince him via various approaches in the hope that Allah may accept her efforts and give her the great reward for his guidance through her. The prophet (peace be upon him) once told Ali (may Allah be pleased with him) when he sent him to a people who were idol-worshippers: “Invite them to Islam and inform them what is required of them, for (I swear) by Allah, that Allah guides a man 310

Transactions - Part 5

through you is better than if you had humr un-na’am (a particular kind of camel which is the most sought-after wealth among the Arabs)” (Al-Bukhari, Fath il-Baari 3009). As for the course of the marriage, and what she should do if her husband accepts Islam or doesn’t, Ibn ul-Qayyim (may Allah have mercy upon him) said: What is indicated by evidence of his (i.e., the prophet’s) ruling is that the marriage is mawqoof, or in abeyance (i.e. suspension); if her husband accepts Islam before the elapsing of her ‘iddah (waiting period), then she remains his wife. If her ‘iddah elapses then she has the right to marry whom she pleases or if she likes she may wait (in the hope he may still accept Islam). If he then accepts Islam, she becomes his wife without need of renewing the marriage. (Zaad ul-Ma’aad, Vol 5 p.138). wallahu a’lam. (And Allah the Most Knowledgeable knows what is the most true and correct) Islam Q&A Sheikh Muhammed Salih Al-Munajjid (www.islam-qa.com) 35: Tawbah (repentance) from homosexuality Question: What is required of the man who repents homosexuality? Answer: It is obligatory on both of them - the active and the passive partners - to repent to Allah urgently, passionately and sincerely for no worse combination of punishments was 311

Jurisprudence and Islamic Rulings

sent by Allah as the ones in the case of the people of Lut (asws), who used to commit this filthy crime. The combination of punishments was as follows: They were blinded and left groping, as Allah said, “fatamasna a’yoonahum” (i.e., blinded them). A thunderous cry (tore their hearts) (al-sayha) Their homes were turned upside down. Allah rained upon them a storm of stones of baked clay prepared specifically for them and destroyed them completely. Accordingly the punishment if Islam for sodomy is death whether the two involved are married or unmarried. Said the Prophet (peace be upon him): “Whomsoever you find committing the act, kill them: both the active and the passive partners.” (Abu Dawood, Tirmidhi, and Ibn Majah, authenticated sahih by al-Albani, Arwaa’ ulGhaleel 2350) Excerpted from the book I Want to Repent but (www.islam-qa.com) 32: Tawbah (repentance) from fornication and what is the status of a child Question: There is another problem that has been worrying me for some time—namely, I committed fornication with a woman. How do I repent. Can I marry her in order to cover up the whole affair? Another man says he committed fornication outside his country, and he knows that the woman conceived and 312

Transactions - Part 5

delivered a child. Is this his child? And is itobligatory for him to bear the costs of the child’s upbringing? Answer: Questions of this sort are asked so often and by so many that it is time Muslims paid serious attention to their reformation in the light of the Qur’an and Sunnah, in order that such things do not occur in the first place. Special stress is to be placed on the lowering of the gaze, no bodily contact (including shaking hands) between men and women, wearing of the full hijab, prohibition of meetings in secrecy in particular and of mixing of sexes in general, discouraging unwarranted travel to non-Muslim countries, and early marriages. As for the question about one who committed fornication, there can be two situations. Either the man did it by force, that is, raped the woman. Such a man should pay her the amount of mahr (dower) in accordance with her social class, as compensation for what harm he caused her. As for himself, he should sincerely repent. And, if the matter has reached the authorities, then he should be punished according to the law of shari’ah. See Madarij 1/366. Or, he has he had sex with a woman who consented to the act. There is nothing due from such a man except repentance. Neither the child is his, nor is the cost of upbringing born by him because it is an illegal child and must be attached to the mother and not the father. The man’s marriage to the woman, for the sake of covering up the issue, is also not permissible. For Allah revealed in the Qur’an a verse whose meaning can be translated as: “An adulterer does not marry but an adulteress or mushrika (polytheist). And an adulteress does not marry but an adulterer or mushrik (polytheist). (Al-Noor:3) 313

Jurisprudence and Islamic Rulings

It is also not permissible to marry a woman who is pregnant from an adulterous act, even if the man has fathered the baby in the womb, as it is also not pemissible to marry a woman about whom it is not known if she is pregnant or not. Nonetheless, if he repents, and she also repents, and she is proved to be not carrying a child, then it is permissible that he marry her and begin a new life. If she is carrying a child, they must wait until she delivers birth. Excerpted from the book I Want to Repent but (www.islam-qa.com)

314

Transactions - Part 5

315

Jurisprudence and Islamic Rulings

316